Backcountry Against Dumps v. U.S. Bureau of Indian Affairs

BACKCOUNTRY AGAINST DUMPS;DONNA TISDALE; and JOE E. TISDALE, Plaintiffs, v. UNITED STATES BUREAU OF INDIAN AFFAIRS; DARRYL LACOUNTE,in his official capacity as Director of the United States Bureau of Indian Affairs;AMY DUTSCHKE, in her official capacity asRegional Director of the Pacific Region ofthe United States Bureau of Indian Affairs;UNITED STATES DEPARTMENT OFTHE INTERIOR; DAVID BERNHARDT,in his official capacity as Secretary of theInterior; and TARA SWEENEY, in herofficial capacity as Assistant Secretary ofthe Interior for Indian Affairs, Defendants.TERRA-GEN DEVELOPMENT COMPANY, LLC, Intervenor-Defendant.

Case No.: 20-CV-2343 JLS (DEB)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

June 14, 2021

ORDER GRANTING CAMPO BAND OF DIEGUENO MISSION INDIANS' MOTION TO INTERVENE FOR A LIMITED PURPOSE

(ECF No. 49)

Presently before the Court is proposed Intervenor-Defendant Campo Band of Diegueno Mission Indians' (the "Tribe") Motion to Intervene for a Limited Purpose ("Mot.," ECF No. 49). Also before the Court are Intervenor-Defendant Terra-Gen Development Company, LLC's ("Terra-Gen") Statement of Non-Opposition to the Motion (ECF No. 50); Defendants United States Bureau of Indian Affairs (the "BIA"), Darryl LaCounte, Amy Dutschke, United States Department of the Interior, David Bernhardt, and Tara Sweeny's (collectively, "Federal Defendants") Response to the Motion (ECF No. 52), which "takes no position on the Tribe's motion," id. at 2; Plaintiffs Backcountry Against Dumps, Donna Tisdale, and Joe E. Tisdale's (collectively, "Plaintiffs") Opposition to the Motion ("Opp'n," ECF No. 55); and the Tribe's Reply in support of the Motion ("Reply," ECF No. 56). The Court took the matter under submission without oral argument pursuant to Civil Local Rule 7.1(d)(1). See ECF No. 57. Having carefully considered the Parties' arguments and the law, the Court GRANTS the Tribe's Motion, for the reasons set forth below.

BACKGROUND

Plaintiffs seek judicial review of an approval by the BIA of a lease between the Tribe and Terra-Gen for development of a wind energy project (the "Lease"), to be built principally on the Tribe's reservation (the "Reservation") in San Diego County (the "Project"). See generally First Amended and Supplemental Complaint ("FAC," ECF No. 42). As relevant to the present Motion, the Project would involve the construction of, inter alia, sixty turbines and fifteen miles of access roads within a 2,200-acre corridor on the Reservation. Id. ¶ 2. "The funds from the Lease and the Project will serve as the principal means of funding the Tribe's government operations." ECF No. 49-1 ("Mot. Mem.") at 5.

On July 8, 2020, Plaintiffs filed their initial Complaint in the United States District Court for the Eastern District of California (the "Eastern District"). See generally ECF No. 1. Federal Defendants moved to transfer venue to this District. See ECF No. 5. Shortly thereafter, Terra-Gen filed a motion seeking to intervene as a defendant in the action. See ECF No. 6. Ultimately, The Eastern District granted both motions, see ECF Nos. 22-23,and the action was transferred to this District from the Eastern District and assigned to the Honorable Roger T. Benitez, see ECF Nos. 25-26. The action was subsequently reassigned to this Court. See ECF Nos. 35-36.

Both Terra-Gen and Federal Defendants moved to dismiss, see ECF Nos. 34, 40, and Plaintiffs filed the operative FAC in lieu of opposing the motions, prompting the Court to deny the motions to dismiss as moot, see ECF No. 43. The FAC asserts three claims: (1) violation of the National Environmental Policy Act; (2) violation of the Migratory Bird Treaty Act; and (3) violation of the Bald Eagle and Golden Eagle Protection Act. See generally FAC. Plaintiffs primarily seek declaratory and injunctive relief, in addition to attorneys' fees. See id. ¶ 181.

Both Terra-Gen and Federal Defendants have filed partial motions to dismiss, which remain pending before the Court. See ECF Nos. 46, 60. Meanwhile, the Tribe filed the present Motion on March 3, 2021, see ECF No. 49, and Plaintiffs filed a Motion for Preliminary Injunction on May 19, 2021, see ECF No. 65. Following briefing by the Parties, see ECF Nos. 68-72, the Court determined that it would be most efficient for the Court and the Parties to decide the instant Motion first, see generally ECF No. 73.

LEGAL STANDARD

Federal Rule of Civil Procedure 24(a)(2) permits a party to intervene as a matter of right. The Ninth Circuit has adopted "[a] four-part test . . . to determine whether applications for intervention as a matter of right pursuant to Rule 24(a)(2) should be granted," Cty. of Orange v. Air Cal., 799 F.2d 535, 537 (9th Cir. 1986):

An order granting intervention as of right is appropriate if: (1) the applicant's motion is timely; (2) the applicant has asserted an interest relating to the property or transaction which is the subject of the action; (3) the applicant is so situated that without intervention the disposition may, as a practical matter, impair or impede its ability to protect that interest; and (4) the applicant's interest is not adequately represented by the existing parties.

Id. (quoting United States v. Stringfellow, 783 F.2d 821, 826 (9th Cir. 1986)). "Failure to satisfy any one of the requirements is fatal to the application." Perry v. Proposition 8 Off.Proponents, 587 F.3d 947, 950 (9th Cir. 2009) (citation omitted). "Generally, Rule 24(a)(2) is construed broadly in favor of proposed intervenors and '[courts] are guided primarily by practical considerations.'" United States ex rel. McGough v. Covington Techs. Co., 967 F.2d 1391, 1394 (9th Cir. 1992) (quoting Stringfellow, 783 F.2d at 826). "The 'liberal policy in favor of intervention serves both efficient resolution of issues and broadened access to the courts.'" Peruta v. Cty. of San Diego, 711 F.3d 570, 577 (9th Cir. 2014) (Thomas, J., dissenting) (quoting United States v. City of Los Angeles, 288 F.3d 391, 397-98 (9th Cir. 2002)).

In evaluating a motion to intervene under Rule 24, "[c]ourts are to take all well-pleaded, nonconclusory allegations in the motion to intervene, the proposed complaint or answer in intervention, and declarations supporting the motion as true absent sham, frivolity or other objections." Sw. Ctr. for Biological Diversity v. Berg, 268 F.3d 810, 820 (9th Cir. 2001). A decision on a motion to intervene may be made on the papers alone. See id.

ANALYSIS

The Tribe argues that it is entitled to intervene as of right in this action. See Mot. Mem. at 9. Accordingly, the Court will analyze each of the four relevant requirements in turn.

I. Timeliness of the Motion

"[Courts] consider three criteria in determining whether a motion to intervene is timely: (1) the stage of the proceedings; (2) whether the parties would be prejudiced; and (3) the reason for any delay in moving to intervene." Nw. Forest Res. Council v. Glickman, 82 F.3d 825, 836 (9th Cir. 1996), as amended on denial of reh'g (May 30, 1996) (citing United States v. Oregon, 913 F.2d 576, 588 (9th Cir. 1990)).

Plaintiffs do not contend that the Tribe's Motion is untimely. See Opp'n at 1 (arguing that "the [Tribe] has failed to demonstrate that the second, third and fourth tests are met"). The Tribe filed the present Motion relatively early in the proceedings, before any substantive rulings were made and before Federal Defendants filed their pendingmotion to dismiss; thus, no party will be prejudiced by the Tribe's intervention. See Citizens for Balanced Use v. Mont. Wilderness Ass'n, 647 F.3d 893, 897 (9th Cir. 2011); Nw. Forest Res. Council, 82 F.3d at 837. Accordingly, the Court finds that the Motion is timely.

II. Significantly Protectable Interest in Action and Impairment Thereof

In order to establish a significantly protectable interest in an action, "a prospective intervenor must establish that (1) 'the interest [asserted] is protectable under some law,' and (2) there is a 'relationship between the legally protected interest and the claims at issue.'" Nw. Forest Res. Council, 82 F.3d at 837 (citing Forest Conservation Council v. U.S. Forest Serv., 66 F.3d 1489, 1493 (9th Cir. 1995)) (alterations in original). The Ninth Circuit has further held that "[a]n 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.'" Sw. Ctr. for Biological Diversity, 268 F.3d at 818 (citation omitted). "Contract rights are traditionally protectable interests." Id. at 820 (citations omitted).

With regard to the impairment of a proposed intervenor's ability to protect its interest, the Ninth Circuit "follow[s] the guidance of Rule 24 advisory committee notes that state that '[i]f 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 (citing Fed. R. Civ. P. 24 advisory committee's notes; Forest Conservation Council, 66 F.3d at 1498).

The Tribe argues that it has a significantly protectable interest that would be severely impacted by the instant litigation, as "[t]he relief that Plaintiffs seek by way of this action will have direct, immediate and harmful effects upon the Tribe's legally protected interests—namely, the construction of renewable energy facilities on its Reservation under the Lease entered into with Terra-Gen." Mot. Mem. at 11-12. Plaintiffs seek a declaration that the Project violates various federal laws and an injunction enjoining the Project until those violations are remedied. Id. at 12 (citing FAC ¶ 181). Accordingly, "[i]f the Courtgrants the relief sought by Plaintiffs, the Tribe's legally protected interests in the Lease and its use of its sovereign Reservation will be directly impacted." Id.

Plaintiffs counter that the Tribe fails to show a significantly protectable interest in the...