Michael Saul (pro hac vice) Center for Biological Diversity 1536 Wynkoop Street, Suite 421

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1 Case 4:17-cv BMM Document 29 Filed 05/18/17 Page 1 of 7 Jenny K. Harbine 313 East Main Street Bozeman, MT jharbine@earthjustice.org ( Phone ( Fax Edward B. Zukoski (pro hac vice th Street, Suite 1600 tzukoski@earthjustice.org ( Phone ( Fax Counsel for Plaintiffs Joshua Osborne-Klein (pro hac vice Wyatt F. Golding (pro hac vice Ziontz Chestnut 2101 Fourth Avenue, Suite 1230 Seattle, WA joshok@ziontzchestnut.com ( Phone ( Fax Michael Saul (pro hac vice 1536 Wynkoop Street, Suite 421 MSaul@biologicaldiversity.org ( Phone Anchun Jean Su (pro hac vice 1212 Broadway, Suite 800 Oakland, CA jsu@biologicaldiversity.org ( Phone ( Fax Counsel for Plaintiff Counsel for Plaintiff Northern Cheyenne Tribe

2 Case 4:17-cv BMM Document 29 Filed 05/18/17 Page 2 of 7 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA GREAT FALLS DIVISION CITIZENS FOR CLEAN ENERGY, ECOCHEYENNE, MONTANA ENVIRONMENTAL INFORMATION CENTER, CENTER FOR BIOLOGICAL DIVERSITY, DEFENDERS OF WILDLIFE, SIERRA CLUB, and WILDEARTH GUARDIANS, and Plaintiffs, THE NORTHERN CHEYENNE TRIBE, v. Plaintiff, U.S. DEPARTMENT OF THE INTERIOR; U.S. SECRETARY OF THE INTERIOR; and U.S. BUREAU OF LAND MANAGEMENT, Defendants. Case No. 4:17-cv BMM PLAINTIFFS RESPONSE TO STATE OF WYOMING S MOTION TO INTERVENE On April 27, 2017, the State of Wyoming filed a motion to intervene under Federal Rule of Civil Procedure 24(a or, in the alternative, Rule 24(b. Plaintiffs Citizens for Clean Energy, ecocheyenne, Montana Environmental Information Center,, Defenders of Wildlife, Sierra Club, 1

3 Case 4:17-cv BMM Document 29 Filed 05/18/17 Page 3 of 7 WildEarth Guardians, and the Northern Cheyenne Tribe (collectively, Plaintiffs do not oppose intervention by Wyoming. 1 However, Plaintiffs urge the Court to deny Wyoming s request to be excused from filing a proposed answer. See Mot. at 2. Local Rule 24.1 governing intervention filings requires applicants to submit to the clerk and serve on the parties all of the following at one time: (A the motion and separate brief in support; [and] (B the proposed pleading. Local Civ. R. 24.1(b(3. Wyoming has not offered any argument to support its election not to comply with this Court s rules. An answer to a complaint serves an important dual purpose: It gives notice of the issues in dispute and binds the answering party to a position. M.C. by & through M.N. v. Antelope Valley Union High Sch. Dist., 852 F.3d 840, 851 (9th Cir The answer is also the appropriate vehicle for raising defenses to the claims set forth in the complaint, Fed. R. Civ. P. 8(c, 12(b, and establishes the time frame for motions to dismiss based on certain affirmative defenses, id. Rule 12(b, (h. See Lopez v. U. S. Fidelity. & Guar. Co., 18 F.R.D. 59, 61 (D. Alaska 1955 ( The purpose of an answer is to formulate issues by means of defenses 1 Plaintiffs observe that this case has the potential to attract additional defendantintervenors. In that event, Plaintiffs may seek reasonable limitations on the defendant-intervenors briefing to enable efficient conduct of the proceedings. See Advisory Committee Note, 1966 Amendment to Rule 24(a (providing that [a]n intervention of right under the amended rule may be subject to appropriate conditions or restrictions responsive among other things to the requirements of efficient conduct of the proceedings. 2

4 Case 4:17-cv BMM Document 29 Filed 05/18/17 Page 4 of 7 addressed to the allegations of the complaint.. Specifically in cases arising under the Administrative Procedure Act, the responsive pleading helps to establish jurisdictional facts and to streamline the Court s analysis of the administrative record, which in this case is likely to be substantial. Wyoming s only explanation for why it should be excused from these requirements is that this Court previously granted the unopposed requests of federal defendants and defendant-intervenors to be excused from the requirement to file responsive pleadings in Western Organization of Resource Councils, et al. v. BLM, et al., Case No. 16-cv-21-GF-BMM (D. Mont.. The distinct circumstances of that case do not support Wyoming s request here. Primarily, in Western Organization of Resource Councils, the Court was not presented with any argument regarding the utility of responsive pleadings. Furthermore, in that case the federal defendants satisfied at least one purpose of responsive pleadings alerting the Court to affirmative defenses by filing a pre-answer motion to dismiss. See id., Order on Mot. to Dismiss, Doc. 34 (Jan. 25, It was only after the Court denied the motion to dismiss that the plaintiffs and federal defendants stipulated that the case would be decided on cross-motions for summary judgment, and in that context, requested that federal defendants be excused from the requirement to file an answer. Id., Stip. and Joint Proposed Case Mgmt. Plan, Doc. 35 (Feb. 16, Thereafter, Wyoming sought and was 3

5 Case 4:17-cv BMM Document 29 Filed 05/18/17 Page 5 of 7 granted intervention without filing a proposed answer. Id., State of Wyoming s Mot. to Intervene, Doc. 43 (Mar. 28, No such circumstances are present here. 2 If this Court grants Wyoming s intervention motion, Plaintiffs request that the Court order Wyoming to file a responsive pleading, as required by the Federal Rules. Respectfully submitted this 18th day of May, /s/ Jenny K. Harbine. Jenny K. Harbine 313 East Main Street Bozeman, MT jharbine@earthjustice.org ( Phone ( Fax Edward B. Zukoski (pro hac vice th Street, Suite 1600 tzukoski@earthjustice.org ( Phone ( Fax Counsel for Plaintiffs 2 Although Wyoming asserts that Counsel for Plaintiffs did not provide a position on excusing Wyoming from filing an answer prior to the filing of this motion, Mot. at 3, the undersigned counsel raised all of these concerns in an April 21, response to Wyoming s counsel Erik Petersen. Counsel for Wyoming did not reply. 4

6 Case 4:17-cv BMM Document 29 Filed 05/18/17 Page 6 of 7 Joshua Osborne-Klein (pro hac vice Wyatt F. Golding (pro hac vice Ziontz Chestnut 2101 Fourth Avenue, Suite 1230 Seattle, WA joshok@ziontzchestnut.com ( Phone ( Fax Counsel for Plaintiff Northern Cheyenne Tribe Michael Saul (pro hac vice 1536 Wynkoop Street, Suite 421 MSaul@biologicaldiversity.org ( Phone Anchun Jean Su (pro hac vice 1212 Broadway, Suite 800 Oakland, CA jsu@biologicaldiversity.org ( Phone ( Fax Counsel for Plaintiff 5

7 Case 4:17-cv BMM Document 29 Filed 05/18/17 Page 7 of 7 CERTIFICATE OF SERVICE I hereby certify that on this 18th day of May, 2017, a copy of the foregoing was served via the Court s CM/ECF system on all counsel of record. /s/jenny K. Harbine Jenny K. Harbine 6