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Hells Canyon Preservation Council v. Stein

United States District Court, D. Oregon, Pendleton Division

August 24, 2017

HELLS CANYON PRESERVATION COUNCIL, an Oregon nonprofit corporation, and OREGON WILD, an Oregon nonprofit corporation, Plaintiffs,
v.
DISTRICT RANGER KRIS STEIN, in her official capacity as District Ranger of the Eagle Cap Ranger District, Wallowa-Whitman National Forest, and UNITED STATES FOREST SERVICE, an agency of the United States Department of Agriculture, Defendants, and WALLOWA COUNTY, a political subdivision of the State of Oregon, Proposed Defendant-Intervenor

          OPINION AND ORDER

          PATRICIA SULLIVAN United States Magistrate Judge.

         Plaintiffs Hells Canyon Preservation Council and Oregon Wild bring this action to challenge the approval of the Lostine Public Safety Project (the “Lostine Project” or “Project”) by defendants U.S. Forest Service and District Ranger Kris Stein. Compl. (Docket No. 1). Wallowa County (the “County”) moves to intervene. (Docket No. 9). Plaintiffs, subject to certain conditions, do not oppose intervention, and defendants take no position. Id., at 1. For the following reasons, the Court GRANTS the County's Motion to Intervene.

         BACKGROUND

         The Lostine Project is a forest management project in the Wallowa-Whitman National Forest, along the Lostine River corridor. Compl. ¶¶ 3-10; Decision Memo, at 1.[1] The Project “involve[s] a variety of thinning, mitigation of hazard trees, removal of hazardous fuels, and creations of small openings.” Id., at 2. Defendant Stein signed the Decision Memo authorizing the Project on April 5, 2017. Id., at 13. The Project area lies within Wallowa County.[2]

         The Healthy Forests Restoration Act (“HFRA”), 16 U.S.C. § 6501 et seq., authorizes counties, in collaboration with federal and state governments, to create Community Wildfire Protection Plans (“CWPPs”) for protection of at-risk communities within the wildland-urban interface. 16 U.S.C. § 6512. In 2006, the County created the Wallowa County CWPP to reduce wildfire impact on wildland-urban interface areas within the County, and listed the Lostine River corridor as a high-priority area. Wallowa County CWPP, at 1-2.[3]

         Under HFRA § 602, 16 U.S.C. § 6591a, governors can request that the Secretary of Agriculture designate landscape areas for priority hazardous wildfire fuel reduction. Compl. ¶ 44. HFRA § 603, 16 U.S.C. § 6591b, allows Collaborative Restoration Projects in those designated areas to be exempted, by Categorical Exclusion, from review under the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq. Former Governor John Kitzhaber requested § 602 designation for the Lostine Project in 2014, and the designation issued that year. Compl. ¶ 47.[4] The Lostine Project is thus exempt from NEPA review.

         In this action, plaintiffs challenge the Decision Memo under NEPA, HFRA, and the National Forest Management Act (“NFMA”), 16 U.S.C. § 1600 et seq. The County seeks to intervene to protect the asserted property, commercial, recreational, and other interests of the County and its resident landowners in and around the Project area. County Mot. Intervene, at 1-2 (Docket No. 9). According to the County's Local Rule 7-1(a) certification, defendants take no position on intervention, and plaintiffs “do not oppose [intervention] provided that Wallowa County agrees to the schedule adopted by the parties and approved by the Court and avoids duplicating federal defendants' arguments.” Id., at 1.

         LEGAL STANDARD

         Fed. R. Civ. P. 24(a)(2) allows intervention of right by “anyone” who, “[o]n timely motion, ” “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.” This creates a four-part test for intervention of right: (1) the applicant's motion is timely; (2) the applicant has asserted an interest relating to the subject property or transaction; (3) the applicant's ability to protect that interest would, absent intervention, be impaired by disposition of the matter; and (4) the applicant's interest is not adequately represented by the existing parties. County of Orange v. Air Cal., 799 F.2d 535, 537 (9th Cir. 1986).

         As to factor one, timeliness, “three factors are weighed: (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.” Id.

         As to factor two, an interest in the property or transaction, this “is a practical, threshold inquiry.” Sw. Ctr. for Biological Diversity v. Berg, 268 F.3d 810, 818 (9th Cir. 2001). “No specific legal or equitable interest need be established. It is generally enough that the interest asserted is protectable under some law, and that there is a relationship between the legally protected interest and the claims at issue.” Id. (alteration, quotation, and citations omitted). “An applicant demonstrates a ‘significantly protectable interest' when the injunctive relief sought by the plaintiffs will have direct, immediate, and harmful effects upon a third party's legally protectable interests.” Id. (quotation omitted).

         As to factor three, impairment of interest, “if an absentee would be substantially affected in a practical sense by the determination made in an action, he should, as a general rule, be entitled to intervene.” Id. at 822 (alteration omitted) (quoting Fed.R.Civ.P. 24 Advisory Comm. Notes).

         As to factor four, no adequate representation of interest, the “applicant-intervenor's burden . . . is minimal: it is sufficient to show that representation may be inadequate.” Forest Conservation Council v. U.S. Forest Serv., 66 F.3d 1489, 1498 (9th Cir. 1995) (emphasis in original), abrogated on other grounds by Wilderness Soc. v. U.S. Forest Serv., 630 F.3d 1173 (9th Cir. 2011).

A non-party is adequately represented by existing parties if: (1) the interests of the existing parties are such that they would undoubtedly make all of the non-party's arguments; (2) the existing parties are capable of and willing to make such arguments; and (3) the non-party would offer no ...

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