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Wildearth Guardians v. Forson

United States District Court, D. Oregon, Pendleton Division

November 27, 2017

WILDEARTH GUARDIANS, OREGON WILD, THE SIERRA CLUB, and GREAT OLD BROADS FOR WILDERNESS, Plaintiffs,
v.
STACEY FORSON, in her official capacity as Ochoco National Forest Supervisor; and UNITED STATES FOREST SERVICE, Defendants. CENTRAL OREGON LANDWATCH, an Oregon nonprofit corporation, Plaintiff,
v.
STACEY L. FORSON, in her official capacity as Ochoco National Forest Supervisor; JAMES M. PEÑA, in his official capacity as Regional Forester for Region 6 of the United States Forest Service; and UNITED STATES FOREST SERVICE, a federal agency of the United States Department of Agriculture, Defendants. OREGON HUNTERS ASSOCIATION, an Oregon nonprofit corporation, Plaintiff,
v.
UNITED STATES FOREST SERVICE, an agency of the United States Department of Agriculture; and STACY FORSON, Ochoco National Forest Supervisor, in her official capacity, Defendants. and OCHOCO TRAIL RIDERS, OREGON MOTORCYCLE RIDERS ASSOCIATION, PACIFIC NORTHWEST 4 WHEEL DRIVE ASSOCIATION, DESCUTES COUNTY 4 WHEELERS, and THE BLUERIBBON COALITION, Defendant-Intervenor- Applicants.

          OPINION AND ORDER

          PATRICIA SULLIVAN, UNITED STATES MAGISTRATE JUDGE.

         In the above-captioned, consolidated actions, plaintiffs challenge the Ochoco Summit Trail System Project in the Ochoco National Forest. Intervenor-applicants Ochoco Trail Riders, Oregon Motorcycle Riders Association, Pacific Northwest 4 Wheel Drive Association, Deschutes County 4 Wheelers, and the BlueRibbon Coalition (“intervenor-applicants”) move to intervene as defendant-intervenors. (Docket No. 28). The existing parties do not oppose intervention, subject to certain conditions. Id., at 1-2. For the following reasons, the Court GRANTS intervenor-applicants' Motion to Intervene subject the parties' agreed conditions.

         BACKGROUND

         This action concerns the decision of defendants Stacey Forson and the U.S. Forest Service to approve new off-highway vehicle trails and a 137-mile motorized trail system in the Ochoco National Forest in Central Oregon. Am. Compl. ¶ 1 (Docket No. 24).[1] Plaintiffs allege that the Project will harm the Forest's wildlife, vegetative, water, and other natural resources by allowing motorized vehicle traffic. Id. ¶ 15. Plaintiffs are environmental non-profit and community organizations. Id. ¶¶ 10-13. They seek declaratory and injunctive relief under the Administrative Procedure Act, 5 U.S.C. § 701 et seq.; the National Environmental Policy Act, 42 U.S.C. § 4321 et seq.; Executive Order 11644 (as amended by Executive Order 11989); Forest Service Travel Management regulations, 36 C.F.R. Part 212; the National Forest Management Act, 16 U.S.C. § 1600 et seq.; and implementing regulations. Am. Compl. ¶ 2.

         Intervenor-applicants are non-profit corporations, public benefit corporations, and/or volunteer organizations of recreational motor vehicle rider enthusiasts, including off-road motorcycles, Jeeps and four-wheel drive vehicles, and all-terrain vehicles. Worley Decl. ¶¶ 1-3 (Docket No. 28-1); Drake Decl. ¶¶ 1-3 (Docket No. 28-2); Ulrich Decl. ¶¶ 1-3 (Docket No. 28-3); Amador Decl. ¶¶ 1-3 (Docket No. 28-4). Intervenor-applicants seek to intervene to represent their interests in access to Forest Service lands through the Summit Trail System Project.

         Per intervenor-applicants' certification, the existing parties do not oppose intervention, subject to these conditions:

(1) Defendant-Intervenor-Applicants will not seek discovery in this proceeding or introduce materials outside the administrative record on the merits of Plaintiffs' claims;
(2) Defendant-Intervenor-Applicants will not assert claims against Plaintiffs or Federal Defendants in this proceeding;
(3) Defendant-Intervenor-Applicants will confine their arguments to the issues raised in Plaintiffs' complaints and will avoid collateral arguments; and
(4) Defendant-Intervenor-Applicants will not repeat arguments raised by Federal Defendants.

Mot. Intervene, at 2-3 (Docket No. 28). Intervenor-applicants agree to the conditions. Id., at 3.

         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 existing parties do not adequately represent applicant's interests. 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 ...


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