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Northwest Environmental Advocates v. United States Environmental Protection Agency

United States District Court, D. Oregon, Portland Division

March 19, 2014

NORTHWEST ENVIRONMENTAL ADVOCATES, a non-profit corporation, Plaintiff,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, a United States Government Agency, Defendant,
v.
STATE OF OREGON and the OREGON WATER QUALITY STANDARDS GROUP, an ad hoc coalition, Intervenor-Defendants.

ORDER

JOHN V. ACOSTA, Magistrate Judge.

The Freshwater Trust ("TFT"), a 501(c)(3) not-for-profit conservation organization, seeks to join this litigation as an intervenor-defendant. The court deems oral argument unnecessary for resolution of this motion. For the following reasons, TFT's Motion to Intervene [58] is granted.

Background

The initial Complaint in this case was filed on September 27, 2012, challenging the U.S. Environmental Protection Agency's (EPA) approval and failure to approve several temperature and mercury Total Maximum Daily Loads (TMDLs) established by the State of Oregon. The State of Oregon intervened in this matter as an intervenor-defendant on February 1, 2013 and the Oregon Water Quality Standards Group intervened in this matter as a second intervenor-defendant on January 27, 2014. At this time, the parties have been engaged in settlement negotiations and no substantive motions have been filed. The first dispositive motion is due April 14, 2014. TFT is a not-for-profit conservation organization that works to preserve and restore freshwater ecosystems, in part, through water quality trading programs. On February 21, 2014, TFT moved to intervene in this matter as an intervenor-defendant. TFT's Motion to Intervene is unopposed.

Standards

Federal Rule of Civil Procedure 24 provides for two types of intervention by a private party: intervention as a matter of right and permissive intervention. FED.R. CIV. P. 24. Intervention as a matter of right must be granted on a timely motion to anyone who "claims an interest 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." Id. The Ninth Circuit has developed a four-part test to evaluate applications for intervention as a matter of right. Citizens for Balanced Use v. Mont. Wilderness Ass'n, 647 F.3d 893, 897 (9th Cir. 2012). The applicant must demonstrate that:

(1) the intervention application is timely; (2) the applicant has a significant protectable interest relating to the property or transaction that is the subject of the action; (3) the disposition of the action may, as a practical matter, impair or impede the applicant's ability to protect its interest; and (4) the existing parties may not adequately represent the applicant's interest.

Id. (citations and quotation omitted).

Permissive intervention is appropriate on a timely motion when an applicant "has a claim or defense that shares with the main action a common question of law or fact." Fed.R.Civ.P. 24(b). To satisfy the requirements of Rule 24(b), the applicant must prove that: "(1) it shares a common question of law or fact with the main action; (2) its motion is timely; and (3) the court has an independent basis for jurisdiction over the applicant's claims." Donnelly v. Glickman, 159 F.3d 405, 412 (9th Cir. 1998).

Regardless of what type of intervention is sought, the Ninth Circuit upholds a liberal policy in favor of intervention. Wilderness Soc. v. U.S. Forest Serv., 630 F.3d 1173, 1179 (9th Cir. 2011). Such a policy allows for "both efficient resolution of issues and broadened access to the courts." Id. (quoting United States v. City of Los Angeles, 288 F.3d 391, 197 (9th Cir. 2002)).

Analysis

TFT asserts that it is entitled to intervene in this action as a matter of right, or in the alternative, that this court should grant it permissive intervention.

I. Intervention as a ...


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