United States District Court, D. Oregon, Pendleton Division
HELLS CANYON PRESERVATION COUNCIL, an Oregon nonprofit corporation, and OREGON WILD, an Oregon nonprofit corporation, Plaintiffs,
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.
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.
Lostine Project is a forest management project in the
Wallowa-Whitman National Forest, along the Lostine River
corridor. Compl. ¶¶ 3-10; Decision Memo, at
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.
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.
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. The Lostine Project is thus exempt from
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.
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).
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.
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
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.
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
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