`
`UNITED STATES DISTRICT COURT
`DISTRICT OF IDAHO
`
`WESTERN WATERSHEDS PROJECT, and
`CENTER FOR BIOLOGICAL DIVERSITY,
`
`Plaintiffs,
`
`vs.
`
`RYAN K. ZINKE, Secretary of Interior; DAVID
`BERNHARDT, Deputy Secretary of Interior; and
`UNITED STATES BUREAU OF LAND
`MANAGEMENT, an agency of the United States,
`
`Defendants,
`
`and,
`
`STATE OF WYOMING; WESTERN ENERGY
`ALLIANCE,
`
`Defendants-Intervenors.
`
`Case No.:
`
`1:18-cv-00187-REB
`
`LIMITED MEMORANDUM
`DECISION AND ORDER RE:
`
`ANSCHUTZ EXPLORATION
`CORPORATION’S MOTION TO
`INTERVENE
`(Dkt. 198)
`
`ANSCHUTZ EXPLORATION
`CORPORATION’S JOINDER OF
`MOTIONS TO STAY PENDING
`APPEAL
`(Dkt. 205)
`
`CHESAPEAKE EXPLORATION,
`LLC’S MOTION TO INTERVENE
`(Dkt. 232)
`
`Now pending before the Court are (1) Anschutz Exploration Corporation’s (“AEC”)
`
`Motion to Intervene (Dkt. 198), (2) AEC’s Joinder of Motions to Stay Pending Appeal (Dkt.
`
`205), and (3) Chesapeake Exploration, LLC’s (“Chesapeake”) Motion to Intervene (Dkt. 232).
`
`Having carefully considered the record and otherwise being fully advised, the Court enters the
`
`following Memorandum Decision and Order.1
`
`BACKGROUND
`
`The general contours of this case are well known, as the Court has discussed them in
`
`multiple decisions, including, in part: (1) the August 21, 2018 Memorandum Decision and
`
`1 The restrictive circumstances presented by national, state, and local responses to the
`recent and evolving COVID-19 outbreak/pandemic, combined with the need to address the
`existing parties’ (including AEC’s and Chesapeake’s) appeal-related arguments and briefing
`schedules, call for a more concise discussion than is the Court’s typical practice.
`
`LIMITED MEMORANDUM DECISION AND ORDER - 1
`
`
`
`Case 1:18-cv-00187-REB Document 272 Filed 07/24/20 Page 2 of 15
`
`Order, granting Defendant-Intervenors Motions to Intervene (Dkt. 54); (2) the September 4, 2018
`
`Memorandum Decision and Order, denying Defendants’ Motion to Sever and Transfer (Dkt. 66);
`
`(3) the September 21, 2018 Memorandum Decision and Order, granting in part and denying in
`
`part Plaintiffs’ Motion for Preliminary Injunction (Dkt. 74); (4) the July 9, 2019 Memorandum
`
`Decision and Order, granting in part and denying in part the then-pending Motions to Dismiss or
`
`in the Alternative to Sever and Transfer Plaintiffs’ NPL Claims (Dkt. 150); and (5) the February
`
`27, 2020 Memorandum Decision and Order, granting Plaintiff’s Motion for Partial Summary
`
`Judgment and Denying Defendants’/Defendant-Intervenors’ Motion for Partial Summary
`
`Judgment (Dkt. 174).
`
`
`
`Of immediate relevance here, the Court’s February 27, 2020 Memorandum Decision and
`
`Order set aside IM 2018-034’s at-issue provisions and the Phase One lease sales applying them
`
`(the June and September 2018 lease sales in Nevada Utah, and Wyoming). See generally
`
`2/27/20 MDO (Dkt. 174). AEC and Chesapeake each claim economic and property interests in
`
`certain of these Phase One lease sales,2 and now move to intervene to protect those interests
`
`moving forward, including on appeal. See generally AEC’s Mem. ISO Mot. to Interv. (Dkt.
`
`199); Chesapeake’s Mem. ISO Mot. to Interv. (Dkt. 231-1).3 AEC and Chesapeake also seek to
`
`intervene to protect their same interests in separately-held leases that, while not associated with
`
`2 For example, during the June and September 2018 Phase One lease sales in Wyoming,
`AEC paid about $6.6 million for leases (see DeDominic Decl., ¶¶ 4-5 (Dkt. 199)); and, during
`the September 2018 Phase One lease sales in Wyoming, Chesapeake paid over $3 million for
`leases (see Cryer Decl., ¶ 5 (Dkt. 232-1)). Tens of millions of dollars have also been invested for
`the exploration, acquisition, and development of these leases to date. See generally id.
`
`3 Following the Court’s February 27, 2020 Memorandum Decision and Order, Federal
`Defendants and Defendant-Intervenors Western Energy Alliance (“WEA”) and the State of
`Wyoming (“Wyoming) moved to stay the portion of the Memorandum Decision and Order that
`sets aside the Phase One lease sales and filed Notices of Appeal. See Mots. to Stay (Dkts. 176,
`177, 181); Nots. of Appeal (Dkts. 182, 183, 185). AEC and Chesapeake also filed Notices of
`Appeal. See Nots. of Appeal (Dkts. 204, 236).
`
`LIMITED MEMORANDUM DECISION AND ORDER - 2
`
`
`
`Case 1:18-cv-00187-REB Document 272 Filed 07/24/20 Page 3 of 15
`
`the set-aside Phase One lease sales themselves,4 are implicated in subsequent phases of the
`
`litigation. See id. Claiming that they are the only parties that can adequately protect their
`
`individual interests, AEC and Chesapeake argue that they should have been joined as an
`
`indispensable party under FRCP 19 or, now, allowed to intervene (either by right or by
`
`permission) under FRCP 24(a) and (b). See id.5
`
`STANDARDS OF LAW
`
`
`
`FRCP 19 states:
`
`(a)
`
`Persons Required to Be Joined if Feasible.
`
`(1)
`
`Required Party. A person who is subject to service of process and
`whose joinder will not deprive the court of subject-matter
`jurisdiction must be joined as a party if:
`
`4 On May 12, 2020, the Court ordered the suspension of operations and production of
`the Phase One lease sales – rather than setting them aside – pending appeal. See 5/12/20 MDO,
`pp. 6-11 (Dkt. 226) (responding to Defendants’ and Defendant-Intervenors’ arguments in favor
`of staying action pending appeal: “In sum, the Court is persuaded by the arguments regarding
`the potential for injury in the absence of a stay pending appeal. A stay which leaves things in
`place, not to move forward nor to move backward, achieves a sensible and fair balance of the
`competing interests at this stage of the case. The Phase One lease sales are not to be undone at
`this time, but are suspended during this time – there shall be no further work developing such
`leases or obtaining production from such leases in any way pending appeal.”). Consistent with
`this, the Court also noted that it “is mindful that some work, to include ordinary maintenance and
`repair, may be necessary to preserve the status quo at locations where leasehold development is
`already underway,” indicating that it will consider briefing from any party “requesting additional
`detail as to what work, if any, to maintain the suspended status quo will be permitted.” Id. at p.
`10, n.6. Chesapeake seeks to intervene, in part, to participate in this process. See Chesapeake’s
`Mem. ISO Mot. to Interv., p. 3 (Dkt. 232) (“Chesapeake also seeks to intervene to . . . request
`relief from the Court regarding the suspension status of the Leases in accordance with footnote 6
`of the Court’s May 12, 2020 Memorandum Decision and Order (Dkt. 226) on Defendants’
`Motions to Stay Pending Appeal.”). In this sense, then, Chesapeake’s motivation to intervene is
`associated, at least in part, with the set-aside/suspended Phase One lease sales, beyond its
`simultaneous participation in the appeal and other phases of the litigation.
`
`5 This Memorandum Decision addresses only AEC’s and Chesapeake’s efforts to
`intervene to participate in the appeal, keeping in mind their upcoming appellate briefing
`obligations. Whether AEC and/or Chesapeake will be permitted to intervene in either Phase
`Two of the case or to submit briefing consistent with footnote 6 of the Court’s May 12, 2020
`Memorandum Decision and Order (see supra) will be taken up along with the other pending
`motions to intervene (Dkts. 240, 242, 253, 260, 262, 270) for those same purposes.
`
`LIMITED MEMORANDUM DECISION AND ORDER - 3
`
`
`
`Case 1:18-cv-00187-REB Document 272 Filed 07/24/20 Page 4 of 15
`
`(A)
`
`(B)
`
`in that person’s absence, the court cannot accord complete
`relief among existing parties; or
`
`that person claims an interest relating to the subject of the
`action and is so situated that disposing of the action in the
`persons absence may:
`
`(i)
`
`(ii)
`
`as a practical matter impair or impede the person’s
`ability to protect the interest; or
`
`leave an existing party subject to a substantial risk of
`incurring double, multiple, or otherwise inconsistent
`obligations because of the interest.
`
`(2)
`
`Joinder by Court Order. If a person has not been joined as required,
`the court must order that the person be made a party. A person who
`refuses to join as a plaintiff may be made either a defendant or, in a
`proper case, an involuntary plaintiff.
`
`Fed. R. Civ. P. 19(a)(1)-(2). The issue of a party’s alleged indispensability “is sufficiently
`
`important that it can be raised at any stage of the proceedings – even sua sponte.” McCowen v.
`
`Jamieson, 724 F.2d 1421, 1424 (9th Cir. 1984) (citing Provident Tradesmens Bank & Trust Co. v.
`
`Patterson, 390 U.S. 102, 111 (1968)). Ultimately, however, “[t]here is no precise formula for
`
`determining whether a particular nonparty should be joined under [FRCP 19(a)] . . . . The
`
`determination is heavily influenced by the facts and circumstances of each case.” EEOC v.
`
`Peabody W. Coal Co., 610 F.3d 1070, 1081 (9th Cir. 2010) (citation omitted).
`
`
`
`FRCP 24 states:
`
`(a)
`
`
`
`Intervention of Right. On timely motion, the court must permit anyone to
`intervene who:
`
`(1)
`
`(2)
`
`is given an unconditional right to intervene by a federal statute; or
`
`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.
`
`LIMITED MEMORANDUM DECISION AND ORDER - 4
`
`
`
`Case 1:18-cv-00187-REB Document 272 Filed 07/24/20 Page 5 of 15
`
`
`
`(b)
`
`Permissive Intervention.
`
`(1)
`
`In General. On timely motion, the court may permit anyone to
`intervene who:
`
`(A)
`
`(B)
`
`is given a conditional right to intervene by a federal statute;
`or
`
`has a claim or defense that shares with the main action a
`common question of law or fact
`
`. . . .
`
`(3)
`
`Delay or Prejudice. In exercising its discretion, the court must
`consider whether the intervention will unduly delay or prejudice the
`adjudication of the original parties’ rights.
`
`Fed. R. Civ. P. 24(a)-(b).
`
`Courts generally construe FRCP 24(a) liberally in favor of intervention and, reduced to
`
`its elements, requires a movant to show 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.” Citizens for Balanced Use v. Mont. Wilderness
`
`Ass’n, 647 F.3d 893, 897 (9th Cir. 2011). Courts deciding motions to intervene as of right are
`
`“guided primarily by practical considerations, not technical distinctions.” See id. (citation and
`
`quotations omitted); see also U.S. v. City of Los Angeles, 288 F.3d 391, 397 (9th Cir. 2002)
`
`(stating that “equitable considerations” guide determination of motions to intervene as of right)
`
`(citation omitted). Nonetheless, the “[f]ailure to satisfy any one of the requirements is fatal to
`
`the application.” Perry v. Prop. 8 Official Proponents, 587 F.3d 947, 950 (9th Cir. 2009).
`
`As to FRCP 24(b), courts may grant permissive intervention where the applicant shows:
`
`“(1) independent grounds for jurisdiction; (2) the motion is timely; and (3) the applicant’s claim
`
`LIMITED MEMORANDUM DECISION AND ORDER - 5
`
`
`
`Case 1:18-cv-00187-REB Document 272 Filed 07/24/20 Page 6 of 15
`
`or defense, and the main action, have a question of law or a question of fact in common.”
`
`League of United Latin Am. Citizens v. Wilson, 131 F.3d 1297, 1308 (9th Cir. 1997) (citation and
`
`quotations omitted). “As with motions for intervention as of right, [a] finding of untimeliness
`
`defeats a motion for permissive intervention.” Id. “A motion for permissive intervention
`
`pursuant to [FRCP 24(b)] is directed to the sound discretion of the district court.” San Jose
`
`Mercury News, Inc. v. U.S. Dist. Court – N. Dist. (San Jose), 187 F.3d 1096, 1100 (9th Cir.
`
`1999).
`
`DISCUSSION
`
`A.
`
`AEC and Chesapeake Are Not Required Parties Under FRCP 19
`
`
`
`AEC and Chesapeake argue that their lease interests render them required parties under
`
`FRCP 19(a)(1)(B)(i). See AEC’s Mem. ISO Mot. to Interv., pp. 4-6 (Dkt. 199); Chesapeake’s
`
`Mem. ISO Mot. to Interv., pp. 3-4 (Dkt. 232-1). “As a practical matter, an absent party’s ability
`
`to protect its interest will not be impaired by its absence from the suit where its interests will be
`
`adequately represented by existing parties to the suit.” Alto v. Black, 738 F.3d 1111, 1127 (9th
`
`Cir. 2013); see also Salt River Project Agr. Imp. and Power Dist. v. Lee, 672 F.3d 1176, 1180
`
`(9th Cir. 2012) (concluding that “[a]n absent party with an interest in the action is not a necessary
`
`party under Rule 19(a) ‘if the absent party is adequately represented in the suit.’”) (quoting
`
`Shermoen v. United States, 982 F.2d 1312, 1318 (9th Cir. 1992)). An absent party is adequately
`
`represented where the present party “‘will undoubtedly make all of the absent party’s
`
`arguments,’” “‘the party is capable of and willing to make such arguments,’” and “‘the absent
`
`party would [not] offer any necessary element to the proceedings that the present parties would
`
`neglect.’” Salt River, 672 F.3d at 1180 (quoting Shermoen, 982 F.2d at 1318). “The inquiry into
`
`whether a party is necessary is a practical one and fact specific, and is designed to avoid the
`
`harsh results of rigid application.” A.H.R. v. Wash. State Health Care Auth., 2016 WL 98513, at
`
`LIMITED MEMORANDUM DECISION AND ORDER - 6
`
`
`
`Case 1:18-cv-00187-REB Document 272 Filed 07/24/20 Page 7 of 15
`
`*6 (W.D. Wash. 2016). Here, neither party’s ability to protect its interest is impaired because
`
`those interests are already adequately represented by Defendant-Intervenor WEA.
`
`
`
`Soon after Plaintiffs initiated this action, WEA moved to intervene “to protect its
`
`members’ interests by opposing Plaintiffs’ arguments and opposing Plaintiffs’ request for relief.”
`
`WEA’s Mem. ISO Mot. to Interv., p. 3 (Dkt. 20-1). At that time, WEA highlighted how “its
`
`members have a clear, significantly protectable interest in the subject matter of the litigation; its
`
`members’ interests will be impaired if Plaintiffs prevail; and its interests are not adequately
`
`represented by existing parties.” Id. at p. 4. WEA specifically argued:
`
`(cid:120)
`
`(cid:120)
`
`(cid:120)
`
`(cid:120)
`
`(cid:120)
`
`“[WEA] members hold significant, monetary interests in the challenged
`federal oil and gas leases on the federal lands at issue in this case – leases
`in which member companies have invested tens of millions of dollars.
`Clearly, these valid existing rights and economic interests are significant
`and legally protectable interests and warrant intervention as a matter of
`right. Furthermore, as a trade association representing the interests of its
`member companies on federal public lands, [WEA] has an organizational
`interest in maintaining regulatory certainty in BLM’s oil and gas leasing
`program.”
`
`“The outcome of the instant action poses a direct and substantial threat to
`[WEA] and the property rights and economic interests of its members.
`Moreover, Plaintiffs’ requested relief poses a direct and substantial threat to
`those legally protectable interests.”
`
`“Here, [WEA] has a significantly protectable interest because its member
`companies have existing interests in the federal leases on lands within
`greater sage-grouse habitat in Idaho and across the West. [WEA] members
`have invested tens of millions of dollars on the leases in question and
`billions of dollars in operations in greater sage-grouse habitat, operations
`that expand across much of the range affected by the challenged actions.”
`
`“If Plaintiffs prevail, [WEA] members would suffer economic harm from
`the greater restrictions that would be imposed on federal leases and property
`rights owned by them. Further, members would be unable to fully develop
`their leased oil and natural gas resources, resulting in reduced income to the
`companies and reduced income to the federal government in lease and
`royalty revenue.”
`
`“The Federal Defendants cannot adequately represent [WEA’s] or its
`members’ private and unique interests in this action. . . . In order to protect
`
`LIMITED MEMORANDUM DECISION AND ORDER - 7
`
`
`
`Case 1:18-cv-00187-REB Document 272 Filed 07/24/20 Page 8 of 15
`
`the specific oil and gas development interests of its members, [WEA] must
`be afforded the right to formulate an appropriate litigation strategy and
`present its own legal arguments.” The Federal Defendants are protecting
`the public interest at large and not the specific economic and property
`interests of [WEA] members. The Federal Defendants must consider a wide
`spectrum of views when defending this lawsuit, and, among other things,
`advocate for proper interpretation of federal environmental laws and uphold
`the integrity of federal decision making. Their priority will not be to
`preserve [WEA] members’ investments in the challenged leases, or to
`protect the economic interests in this case.”
`
`(cid:120)
`
`“[WEA] has outlined above why it should be permitted to intervene in this
`proceeding. Further, [WEA] members have specific economic and property
`interests and rights within Idaho and across the 11-state greater sage-grouse
`range. Should Plaintiffs’ action prove successful, [WEA] members would
`suffer economic injury and harm to their rights in leases on lands underlying
`the challenged plans.”
`
`Id. at pp. 5-9 (internal citations omitted); see also Sgamma Decl., ¶¶ 2-7 (Dkt. 20-2) (WEA’s
`
`president discussing its representation of over 300 company members who “hold specific
`
`interests related to the leasing and development of oil and gas resources on public lands;”
`
`“operate in Idaho and other states across the West affected by the Federal Defendants’ actions
`
`related to sage-grouse and oil and natural gas leasing and development in the species’ habitat,
`
`and would be directly injured by the Plaintiffs’ proposed relief”; “hold significant monetary
`
`interests in the challenged federal oil and gas leases at issue in this case”; and have significant
`
`and legally protectable interests that “would be directly and substantially threatened by
`
`Plaintiffs’ requested relief.”).
`
`
`
`On August 21, 2018, the Court granted WEA’s Motion to Intervene, reasoning, in part,
`
`that only WEA is “uniquely capable” of explaining how any potential ruling will affect the
`
`property interests of a private trade association comprised of members heavily dependent on oil
`
`and gas production/leasing. See 8/21/18 MDO, pp. 4-7 (Dkt. 54).6 And, since then, WEA has
`
`6 AEC and Chesapeake contend that WEA intervened only to protect its organizational
`interests moving forward. See AEC’s Mem. ISO Mot. to Interv., p. 12 (Dkt. 199); Chesapeake’s
`
`LIMITED MEMORANDUM DECISION AND ORDER - 8
`
`
`
`Case 1:18-cv-00187-REB Document 272 Filed 07/24/20 Page 9 of 15
`
`diligently represented those interests, including efforts to sever and transfer certain of Plaintiffs’
`
`claims, opposing Plaintiffs’ Motion for Preliminary Injunction, moving to dismiss or
`
`alternatively transfer Plaintiffs’ claims against Jonah Energy, moving for summary judgment
`
`while opposing Plaintiffs’ Motion for Summary Judgment, moving to stay the Phase One lease
`
`vacatur pending appeal, and filing a Notice of Appeal.
`
`
`
`Both AEC and Chesapeake are members of WEA. They naturally share the same
`
`ultimate objective in this lawsuit (upholding the validity of the contested lease sales and avoiding
`
`Mem. ISO Mot. to Interv., p. 9 (Dkt. 232-1). Such an argument is loosely knit, as it is difficult to
`discern where an organization that exists to represent its members interests could be said to have
`organizational interests adverse to its members. But even if somewhat true, this argument
`ignores WEA’s clear intent to simultaneously intervene to protect its members’ interests against
`Plaintiffs’ attempts to unwind the Phase One lease sales. See supra (noting WEA’s arguments
`for intervention); see also WEA’s Reply ISO Mot. to Interv., pp. 1, 4-8 (Dkt. 35) (“[WEA] seeks
`intervention to protect its members’ valid and significant interests and property rights . . . . As
`required in Rule 24, [WEA] claims an interest relating to the property at issue: ownership of the
`leases. [WEA] satisfies the third element of intervention as a matter of right because Plaintiffs’
`requested relief – vacatur of the lease sales – poses a direct and substantial threat to those legally
`protectable interests. . . . [WEA] represents federal lessees who have a significantly protectable
`interest that could be impaired by this litigation. . . . The Federal Defendants are defending
`BLM’s decision-making process, while [WEA] is defending the property rights and business
`interests of its members. . . . [T]he Federal Defendants would not make arguments related to
`[WEA] members’ property interests. . . . [WEA] seeks to intervene to protect the unique
`interests of its members, which would ensure the Court is apprised of all interests and arguments.
`. . . The only question before the court is whether [WEA] should be granted status as a
`Defendant-Intervenor to represent its members’ leasehold interests which the Plaintiffs seek to
`have vacated. [WEA] is a zealous and candid advocate for its members.”) (internal quotation
`marks and citations omitted). More recently, WEA moved on behalf of a member company to
`modify the Court’s May 12, 2020 Memorandum Decision and Order vis à vis the Phase One
`lease sales. See WEA’s Mot. to Modify (Dkt. 251) (“Pursuant to L.R. Civ. 7.1, and the Court’s
`notation in its May 12, 2020 Order, Defendant-Intervenor [WEA], on behalf of member
`company EOG Resources, Inc. (EOG), respectfully moves to allow production to commence on
`one well that traverses one existing oil and gas lease issued under the Phase One lease sale in the
`Powder River Basin of Wyoming, because production will not change the environmental status
`quo pending appeal and will not cause any adverse impacts to greater sage grouse. In other
`words, whatever WEA’s organizational interests may be, they are not mutually exclusive of its
`members’ interests – which WEA also claimed/claims to represent. See e.g., id. at p. 7 (“The
`Federal Defendants cannot adequately represent [WEA’s] or its members’ private and unique
`interests in this action.”) (emphasis added).
`
`LIMITED MEMORANDUM DECISION AND ORDER - 9
`
`
`
`Case 1:18-cv-00187-REB Document 272 Filed 07/24/20 Page 10 of 15
`
`lease vacatur); indeed WEA supported its Motion for Stay Pending Appeal with declarations
`
`from AEC’s President and COO, Joseph DeDominic, and from Chesapeake’s Land Manager,
`
`K.W. Cryer. See DeDominic Decl. (Dkt. 177-5); Cryer Decl. (Dkt. 177-2).7 All this is to say
`
`that AEC’s and Chesapeake’s interests clearly align with those of WEA. Hence, WEA can be
`
`expected to adequately represent – and has adequately represented – AEC’s and Chesapeake’s
`
`interests in this action and on appeal. In short, resolving this action without either AEC or
`
`Chesapeake as parties will not impair or impede their ability to protect their interests.
`
`Intervention is therefore not required under FRCP 19(a)(1)(B)(i).8
`
`B.
`
`AEC and Chesapeake Do Not Have a Right to Intervene Under FRCP 24(a)
`
`Plaintiffs do not dispute that AEC and Chesapeake claim protectable interests as to the
`
`subject of this action, or that disposition of this case might impair or impede their ability to
`
`protect those interests. See Pls.’ Opp. to AEC’s Mot. to Interv. (Dkt. 216); Pls.’ Opp. to
`
`Chesapeake’s Mot. to Interv. (Dkt. 248). However, Plaintiffs argue that AEC and Chesapeake
`
`cannot intervene because their motions are untimely and WEA already adequately represents
`
`their interests. See id. (citing Perry, 587 F.3d at 959 (“Failure to satisfy any one of the
`
`requirements is fatal to the application.”)). The Court agrees.
`
`7 WEA and Chesapeake are represented by the same law firm, Beatty & Wozniak, P.C.,
`and have the same local counsel, Cherese DeDominiq McLain. See Pls.’ Opp. to Chesapeake’s
`Mot. to Interv., p. 11 (Dkt. 248) (“How could the same lawyers that represent WEA somehow be
`unable to represent Chesapeake’s interests adequately, and yet that inadequacy be cured by
`allowing the same lawyers to represent Chesapeake separately from WEA?”).
`
`8 The Court is also not persuaded on this record that, without AEC’s and/or
`Chesapeake’s intervention, the Federal Defendants may be subject to a substantial risk of
`inconsistent obligations under FRCP 19(a)(1)(B)(ii). See, e.g., AEC’s Mem. ISO Mot. to Interv.,
`p. 6 (Dkt. 199) (positing that, if AEC later successfully brought action against government
`seeking declaratory judgment that its leases are valid, “then the government would be in the
`impossible position of facing inconsistent judgments”). Principles of res judicata and/or
`collateral estoppel may apply to foreclose such an occurrence given the relationship between
`WEA and its members in the context of the instant action.
`
`LIMITED MEMORANDUM DECISION AND ORDER - 10
`
`
`
`Case 1:18-cv-00187-REB Document 272 Filed 07/24/20 Page 11 of 15
`
`
`
`Timeliness depends on three factors: “(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 v. Alisal Water Corp., 370 F.3d 915, 921 (9th Cir. 2004). Each of
`
`these factors weighs against intervention.
`
`
`
`First, this case began more than two years ago. In that time, the Court has permitted three
`
`other parties to intervene, denied various motions to dismiss, transferred a portion of the case to
`
`Wyoming, granted a motion for preliminary injunction, granted partial summary judgment for
`
`Plaintiffs (as to Phase One), and stayed the Phase One lease vacatur pending Federal Defendants’
`
`and Defendant-Intervenors’ appeals. Much, if not most, of the work on Phase One is complete
`
`for the time being (at least in this Court) as the appeal progresses forward. Said another way,
`
`this portion of the case – specifically Phase One’s appeal – is in its ending stages. Where, as
`
`here, the Court and parties have “covered a lot of legal ground together . . . [in] substantively and
`
`substantially engag[ing] the issues in this case,” intervention under FRCP 24(a) is disfavored.
`
`See League of United Latin American Citizens, 131 F.3d at 1303.
`
`
`
`Second, allowing AEC and Chesapeake to intervene for the purposes of the Phase One
`
`appeal would not only mean additional parties and briefing for Plaintiffs to address on appeal
`
`(beyond Federal Defendants and Defendant-Intervenors WEA and Wyoming themselves), but
`
`also possible additional arguments not presented to or ruled upon by the Court to date. See
`
`generally AEC’s Mem. ISO Mot. to Interv., (Dkt. 199) (asserting possible violations of due
`
`process rights); Chesapeake’s Mem. ISO Mot. to Interv. (Dkt. 232-1) (raising arguments
`
`premised on Mineral Leasing Act). If intervention is permitted, these concerns may materialize
`
`in redundant arguments and a “piling on” effect, all to Plaintiffs’ prejudice. See, e.g., Shoshone-
`
`Bannock Tribes of Fort Hall Reservation v. U.S. Dept. of Interior, 2010 WL 3173108, at *1 (D.
`
`Idaho 2010).
`
`LIMITED MEMORANDUM DECISION AND ORDER - 11
`
`
`
`Case 1:18-cv-00187-REB Document 272 Filed 07/24/20 Page 12 of 15
`
`
`
`Third, AEC and Chesapeake believed that the Federal Defendants and WEA already
`
`represented their interests and, only when the Court issued its February 27, 2020 Memorandum
`
`Decision and Order vacating the Phase One lease sales did they decide they wanted to intervene
`
`instead. See AEC’s Mem. ISO Mot. to Interv., pp. 7-8 (Dkt. 199); Chesapeake’s Mem. ISO Mot.
`
`to Interv., p. 10 (Dkt. 232-1). However, both AEC and Chesapeake were aware of the lawsuit
`
`and that Plaintiffs were seeking to set aside the Phase One leases as part of that litigation, from
`
`the date it was filed and as the case developed. See, e.g., Compl., ¶ 112 (Dkt. 1) (as part of
`
`Plaintiffs’ original 4/30/18 Complaint: “BLM oil and gas leasing decisions that have been made,
`
`or hereafter are made, under . . . IM 2018-034 are unlawful and should be reversed and set
`
`aside.”); id. at p. 83, ¶ B (Plaintiffs requesting that Court “[r]everse, set aside, hold unlawful,
`
`and/or vacate each and all of the Final Actions, and remand them to Defendants.”);9 see also
`
`Pls.’ Mem. ISO MPSJ, pp. 2, 16, 19-20 (Dkt. 135-1) (as part of Plaintiffs’ 4/26/19 summary
`
`judgment argument: “Plaintiffs also seek an order vacating the leases and underlying decision
`
`documents for the five “Phase One lease sales” – June and September 2018 sales in Nevada,
`
`Utah, and Wyoming – in which BLM applied 2018-034 to unlawfully constrain public
`
`participation. . . . Because those lease sales applied IM 2018-034 in unlawfully restricting input
`
`from Plaintiffs and the public, the Court must reverse and vacate them as well. . . . Plaintiffs
`
`request that the Court vacate the challenged provisions of IM 2018-034 and the leases unlawfully
`
`issued in reliance on that IM. . . . Plaintiffs respectfully pray that the Court grant this Phase One
`
`9 In addition, as part of its justification to intervene back in July 2018, WEA
`acknowledged that Plaintiffs expressly sought to have the Phase One lease sales vacated. See
`Reply ISO Mot. to Interv., pp. 4, 8 (Dkt. 35) (“[WEA] satisfies the third element of intervention
`as a matter of right because Plaintiffs’ requested relief – vacatur of the lease sales – poses a
`direct and substantial threat to those legally protectable interests. . . . The only question before
`the court is whether [WEA] should be granted status as a Defendant-Intervenor to represent its
`members’ leasehold interests which the Plaintiffs seek to have vacated.”). Again, the Court
`allowed WEA to intervene based, in part, upon those representations.
`
`LIMITED MEMORANDUM DECISION AND ORDER - 12
`
`
`
`Case 1:18-cv-00187-REB Document 272 Filed 07/24/20 Page 13 of 15
`
`partial summary judgment motion, enter summary judgment in their favor on their Fourth and
`
`Fifth Claims for Relief, and reverse and vacate IM 2018-034 and the five challenged June and
`
`September 2018 lease sales.”). That AEC and Chesapeake may have believed that the Phase
`
`One leases would not be cancelled does not somehow toll the time for them to seek intervention
`
`until the Court’s Memorandum Decision and Order actually did so. See Alaniz v. Tillie Lewis
`
`Foods, 572 F.2d 657, 659 (9th Cir. 1978) (“The crux of appellants’ argument is that they did not
`
`know the settlement decree would be to their detriment. But surely they knew the risks. To
`
`protect their interests, appellants should have joined the negotiations before the suit was
`
`settled.”). In such a setting, the reasons proffered by AEC and Chesapeake for their delay in
`
`moving to intervene fall short. Combined, each of these factors reveals that AEC’s and
`
`Chesapeake’s Motions to Intervene are untimely.
`
`
`
`Separately, for reasons discussed above, WEA has represented and can be expected to
`
`adequately represent AEC’s and Chesapeake’s interests. See supra. WEA’s interests in this
`
`action parallel those of its members. There is no suggestion that, nor any sensible reason to
`
`believe, that WEA’s defenses to Plaintiffs’ claims (or its arguments on appeal) are antithetical to
`
`AEC’s and Chesapeake’s interests. See supra. Further, WEA can make any reasonable
`
`argument that AEC or Chesapeake would make if either were a party – indeed, WEA has already
`
`done so with the express assistance of AEC and Chesapeake. See id. (noting AEC’s and
`
`Chesapeake’s declarations in support of WEA’s attempt at staying action pending appeal).10
`
`10 AEC and Chesapeake suggest that, while WEA may have adequately represented its
`interests up until the Court issued its February 27, 2020 Memorandum Decision and Order, it no
`longer is capable of doing so. See AEC’s Mem. ISO Mot. to Interv., p. 12 (Dkt. 199) (“[WEA]’s
`organizational representation of the industry at that point [(upon the Court’s Order)] was no
`longer adequate.”); Chesapeake’s Mem. ISO Mot. to