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Bark v. Northrup

United States District Court, Ninth Circuit

November 18, 2013

BARK, Plaintiff,
v.
LISA NORTHRUP, Acting Forest Supervisor of the Mt. Hood National Forest; U.S. FOREST SERVICE, a federal agency, Defendants.

FINDINGS AND RECOMMENDATION

JANICE M. STEWART, Magistrate Judge.

INTRODUCTION

Plaintiff, Bark, is a non-profit organization dedicated to protecting and restoring the forests, waters, and wildlife of the Mt. Hood National Forest and surrounding public lands. It filed this action against the United States Forest Service and the Acting Forest Supervisor, Lisa Northrup, (collectively "Forest Service"), seeking to enjoin the Jazz Timber Sale in the Collawash Watershed of the Mt. Hood National Forest based on an alleged failures to comply with federal environmental and administrative statutes, including the National Environmental Policy Act, 42 USC § 4321 et seq ("NEPA"), and the National Forest Management Act, 16 USC § 1600 et seq ("NFMA"). Based on its field work, including post-logging monitoring of similar timber sales, Bark alleges that the Forest Service has failed to take the required "hard look" at the likely ecological impacts of the Jazz Timber Sale.

This court has jurisdiction over the Complaint pursuant to 28 USC § 1331 because Bark's claims arise under federal law.

Interfor, U.S., Inc. ("Interfor"), a purchaser of two timber sales within the Jazz Timber Sale, has filed a Motion to Intervene (docket #6) as a defendant in this action as a matter of right under FRCP 24(a) or, in the alternative, with permission of the court under FRCP 24(b). Bark opposes intervention.[1] The Forest Service does not oppose intervention, but requests that limitations be placed on Interfor's intervention. For the reasons that follow, Interfor's motion should be granted with some limitations.

STANDARD

Intervention as a matter of right is warranted under FRCP 24(a)(2) if: (1) the motion is timely; (2) the applicant claims a "significantly protectable" interest relating to the property or transaction that is the subject of the action; (3) disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest; and (4) the applicant's interest must be inadequately represented by the parties to the action. California ex rel. Lockyer v. United States, 450 F.3d 436, 440 (9th Cir 2006) (citation omitted). In general, these four requirements are "broadly interpreted in favor of intervention, ' although the party seeking to intervene bears the burden of showing the four elements are met." Prete v. Bradbury, 438 F.3d 949, 954 (9th Cir 2006), quoting United States v. Alisal Water Corp., 370 F.3d 915, 919 (9th Cir 2004). "In addition to mandating broad construction, our review is guided primarily by practical considerations, not technical distinctions." Sw. Ctr. for Biological Diversity v. Berg, 268 F.3d 810, 818 (9th Cir 2001) (internal quotation marks and citation omitted).

Even if the applicant cannot intervene as a matter of right, the court "may permit anyone to intervene who... has a claim or defense that share with the main action a common question of law or fact." FRCP 24(b)(1)(B). The existence of a common question of law or fact does not require a court to permit intervention because the district court retains the discretion "to determine the fairest and most efficient method of handling a case." Venegas v. Skaggs, 867 F.2d 527, 530 (9th Cir 1989), quoting SEC v. Everest Mgmt. Corp., 475 F.2d 1236, 1240 (2nd Cir 1972). "In exercising its discretion, the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties' rights." FRCP 24(b)(3). The court also should evaluate "whether the movant's interests are adequately represented by existing parties.'" Venegas, 867 F.2d at 530, quoting State of Cal. v. Tahoe Reg'l Planning Agency, 792 F.2d 775, 779 (9th Cir 1986). Promotion of judicial economy is also "a relevant consideration in deciding a motion for permissive intervention." Id at 531 (citations omitted). Finally the court may consider whether the applicant's intervention will "significantly contribute to full development of the underlying factual issues in the suit and to the just and equitable adjudication of the legal questions presented." Spangler v. Pasadena City Bd. of Ed., 552 F.2d 1326, 1329 (9th Cir 1977) (citation omitted).

FINDINGS

I. Intervention as a Matter of Right

A. Timing

This court evaluates three factors to determine whether a motion to intervene is timely: "(1) the stage of the proceeding at which an applicant seeks to intervene; (2) the prejudice to other parties; and (3) the reason for and length of the delay." United States ex rel. McGough v. Covington Techs. Co., 967 F.2d 1391, 1394 (9th Cir 1992) (citation omitted).

Neither party disputes the timeliness of Interfor's motion. Bark initiated this action on July 25, 2013, and no substantive proceedings occurred before Interfor filed this motion. The record also reveals that Interfor did not delay in filing the motion. It was awarded the contract with the Forest Service for purchase of lumber from the Jazz Timber Sale on September 24, and filed ...


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