UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Prescott Division

Transcription

1 Case :0-cv-00-PGR Document Filed 0//0 Page of 0 0 DENNIS K. BURKE United States Attorney District of Arizona SUE A. KLEIN Assistant U.S. Attorney Arizona State Bar No. Two Renaissance Square 0 North Central Avenue, Suite 00 Phoenix, Arizona 00-0 Tel.: (0) sue.klein@usdoj.gov JOHN C. CRUDEN Acting Assistant Attorney General Environment and Natural Resources Division LUTHER L. HAJEK Trial Attorney, D.C. Bar No. Environment and Natural Resources Division Natural Resources Section P.O. Box, Ben Franklin Station Washington, D.C Tel.: (0) luke.hajek@usdoj.gov JEAN E. WILLIAMS, Section Chief SETH M. BARSKY, Asst. Section Chief S. JAY GOVINDAN, Senior Trial Attorney Wildlife & Marine Resources Section Ben Franklin Station, P.O. Box Washington, DC 00- Tel: (0) 0-0 / Fax: (0) Jay.Govindan@usdoj.gov Center for Biological Diversity, v. Plaintiff, UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Prescott Division U.S. Bureau of Land Management; Bob Abbey, Director of U.S. BLM; James Kenna, BLM Arizona State Director; Ken Salazar, Secretary of Interior, and U.S. Fish and Wildlife Service, Defendants. Case No. :0-cv-00-PCT-PGR DEFENDANTS RESPONSE TO THE NATIONAL RIFLE ASSOCIATION S MOTION FOR LEAVE TO INTERVENE

2 Case :0-cv-00-PGR Document Filed 0//0 Page of 0 0 INTRODUCTION Defendants U.S. Bureau of Land Management ( BLM ); Bob Abbey, Director of BLM; James Kenna, BLM Arizona State Director; Ken Salazar, Secretary of the Interior; and U.S. Fish and Wildlife Service ( FWS ) (collectively, Defendants ) hereby respond to the National Rifle Association s ( NRA ) Motion for Leave to Intervene ( NRA Mot. ) (Docket No. ). In its Motion, NRA asserts a legally protectable interest in hunting using lead shot in the Arizona Strip District, an area which includes the Grand Canyon-Parashant and Vermillion Cliffs National Monuments ( the Monuments ) and lands administered by BLM s Arizona Strip Field Office ( Arizona Strip FO ). NRA argues that it is entitled to intervention as of right or, in the alternative, permissive intervention because, if Plaintiff Center for Biological Diversity ( Plaintiff ) is granted all of the relief it seeks in this case, NRA s interest will be jeopardized. Defendants take no position on whether NRA should be granted intervention in this case. Defendants request, however, that NRA s participation in this case, should intervention be granted, be appropriately limited and conditioned so as not to unduly expand or delay the proceedings in this case. Specifically, Defendants request that NRA not be permitted to conduct discovery or introduce extra-record evidence, which are inappropriate in cases brought under the Administrative Procedure Act ( APA ), U.S.C., et seq. Additionally, NRA should not be permitted to raise new claims or collateral matters that are not within the scope of this lawsuit, and NRA s participation should be limited to the claims related to its expressed interest in hunting. BACKGROUND Plaintiff filed its initial complaint in this action on January, 00 and amended its complaint on March, 00. (Docket Nos., ). In this case, Plaintiff challenges the issuance by BLM of three resource management plans ( RMP ) for the Monuments and the and the Arizona Strip FO. In its First Amended Complaint, Plaintiff alleges that BLM and FWS failed to comply with the National Environmental Policy Act, U.S.C. et seq. ( NEPA ), the Federal Land Policy and Management Act, U.S.C. 0 et seq. ( FLPMA ), the Presidential Proclamations establishing the Monuments, and the Endangered

3 Case :0-cv-00-PGR Document Filed 0//0 Page of 0 0 Species Act, U.S.C. (a)() ( ESA ), by refusing to incorporate actions necessary to protect public lands and endangered and threatened species from adverse impacts of excessive off-road vehicle ( ORV ) use, livestock grazing, and the use of lead ammunition in their land and wildlife management planning for the Monuments and the Arizona Strip FO. Plaintiffs claims are brought pursuant to the APA, U.S.C. 0-0, and the ESA, U.S.C. 0(g). See First Amend. Comp.,, 0,,,, 00. Defendants filed their Answer to the First Amended Complaint on May, 00. (Docket No. ). The Parties submitted a Joint Case Management Report on August, 00. (Docket No. ). Defendants have completed compilation of the administrative record and provided a copy of the administrative record on DVDs to Plaintiff on October, 00. A case management conference in this case and the related case, The Wilderness Society v. U.S. Bureau of Land Management, Case No. :0-cv-000-PGR (D. Ariz.), was scheduled for November, 00 but has now been postponed (Docket No. ). NRA filed its Motion for Leave to Intervene on October, 00. NRA Mot. (Docket No. ). In its Motion, NRA asserts an interest in hunting in the Arizona Strip District. Id. at. NRA alleges that this interest could be affected in this lawsuit based upon Plaintiff s Fourth and Fifth Claims for relief. Id. at,. In those claims, Plaintiff alleges that BLM and FWS violated the ESA because, among other things, they failed to adequately consider the risks to the California condor of hunters using lead shot. Id. at -0; First Amend. Comp Plaintiff alleges that the California condor are exposed to lead shot because they feed on carcasses of game killed by hunters. First Amend. Comp.. Plaintiff requests that the Arizona Strip District RMPs and FWS s Biological Opinion be declared unlawful for failing to adequately assess the risks to the California condor. Id. at Prayer for Relief ()-(). Thus, NRA argues that its interest in hunting using lead shot could be impaired if Plaintiff achieves success on its ESA claims. NRA Mot. at 0-.

4 Case :0-cv-00-PGR Document Filed 0//0 Page of 0 0 LEGAL STANDARDS The Federal Rules of Civil Procedure provide for two types of intervention: intervention as of right and permissive intervention. See Fed. R. Civ. P. (a)-(b). With respect to intervention as of right, the Rule provides: On timely motion, the court must permit anyone to intervene who: () is given an unconditional right to intervene by a federal statute; or () claims an interest relating to the property or transaction that is 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. Fed. R. Civ. P. (a). The Ninth Circuit has adopted a four part test for determining whether the requirements of Rule (a) are met: () the motion must be timely; () the applicant must assert a significantly protectable interest relating to property or a transaction that is the subject matter of litigation; () the applicant must be situated so that disposition of [the] action may as a practical matter impair or impede the interest; and () the applicant s interest must be inadequately represented by the parties. Kootenai Tribe of Idaho v. Veneman, F.d 0, 0-0 (th Cir. 00); see also Sw. Ctr. for Biological Diversity v. Berg, F.d 0, (th Cir. 00). As an alternative to intervention as of right, a court may, upon a timely motion, grant permissive intervention to anyone who: (A) is given a conditional right to intervene by a federal statute; or (B) has a claim or defense that shares with the main action a common question of law or fact. Fed. R. Civ. P. (b)(); see also Kootenai Tribe, F.d at 0 ( Under Rule (b) the question here is whether the applicants to intervene assert a claim or defense in common with the main action. ). In exercising its discretion [to grant permissive intervention], the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties rights. Fed. R. Civ. P. (b)(). In the Ninth Circuit, a court may grant permissive intervention where the applicant for intervention shows () independent grounds for subject matter jurisdiction; () the motion is timely; and () the applicant s claim or defense, and the main action, have a question of law or a question of fact in common. Nw. Forest Res. Council v. Glickman, F.d, (th Cir. ).

5 Case :0-cv-00-PGR Document Filed 0//0 Page of 0 0 ARGUMENT Defendants take no position on whether the Court should grant NRA intervention. Should the Court grant NRA intervention, however, Defendants request that the Court impose reasonable conditions on NRA s participation in the case so as not to expand or delay the proceedings. As explained below, Defendants request that NRA not be permitted to conduct discovery or introduce extra-record materials, that NRA not be permitted to expand the scope of the claims being litigated, and that NRA s participation be limited to its stated interest, which NRA asserts may be affected by a ruling on Plaintiff s Fourth and Fifth Claims for Relief. First, NRA should not be permitted to conduct discovery or introduce extra-record materials outside of the administrative record prepared by the agencies. This case is brought pursuant to the APA and the ESA and therefore will be reviewed based on the administrative record prepared by the agencies. See U.S.C. 0 (stating that a reviewing court shall review the whole record or those parts of it cited by a party.... ); Citizens to Preserve Overton Park, Inc. v. Volpe, 0 U.S. 0, 0 () ( That review is to be based on the full administrative record that was before the Secretary at the time he made his decision. ); City of Sausalito v. O Neill, F.d, 0 (th Cir. 00) (stating that judicial review of ESA claims are governed by the judicial review provisions of the APA). In its Motion, NRA states that it intends to argue that the best scientific evidence does not establish a link between the use of lead shot and condor mortality. NRA Mot. at -. In making those arguments, NRA plans to argue that the administrative record and the relevant scientific data do not support CBD s assertion regarding the prevalence of lead-related condor mortalities. Id. at (emphasis added). Thus, NRA apparently seeks to go beyond the administrative record, which has already been prepared by the agencies. This should not be permitted in an APA case, and the Court should require that NRA s arguments be limited to the administrative record. See Fla. Power & Light Co. v. Lorion, 0 U.S., - () ( The task of the reviewing court is to apply the appropriate APA standard of review,

6 Case :0-cv-00-PGR Document Filed 0//0 Page of 0 0 U.S.C. 0(), to the agency decision based on the record the agency presents to the reviewing court. ). Second, NRA should not be permitted to expand the scope of the current proceedings. The issue of lead shot and condors is just one of many issues that will be litigated in this case. In the interest of resolving all of the issues in the case as efficiently as possible, it is important that this issue not be elevated above other issues in the case. Although NRA does not state that it intends to raise any of its own claims, it apparently intends to argue that FWS s assessment of the condor mortality due to lead shot is inaccurate. NRA Mot. at. While NRA s intentions are somewhat uncertain, the Court should clarify that NRA will not be permitted to insert new claims into the lawsuit. See Arakaki v. Cayetano, F.d 0, 0 (th Cir. 00) ( [A proposed intervenor] is not permitted to inject new, unrelated issues into the pending litigation. ); United States v. Oregon, F.d, (th Cir. 0) (noting that the district court conditioned intervention upon not expanding the geographic scope of the existing lawsuit). Third, NRA s involvement should be limited to the claims in which it asserts an interest, which are Plaintiff s Fourth and Fifth Claims for Relief. See NRA Mot. at. NRA asserts a protectable interest only with respect to those two ESA claims and does not assert a protectable interest with respect to Plaintiff s NEPA, FLPMA, Monument Proclamation, or other ESA claim. See id. at -. Accordingly, NRA s intervention should be limited to Plaintiff s Fourth and Fifth Claims for Relief as those claims relate to NRA s interest in hunting in the Arizona Strip District. See Pac. Coast Fed n of Fishermen s Ass ns v. Gutierrez, No. :0-CV-00 OWW GSA, 00 WL 0, * (E.D. Cal. Sept., 00) (granting intervention to a California water district in an ESA claim involving a water project, but strictly limiting their participation to Stanislaus-New Melones issues, about which they can provide unique information and/or arguments ). Finally, NRA s intervention should be structured so as to avoid duplication, inefficiency, and increased burdens being placed upon the parties and the Court. See Natural Res. Def. Council v. Norton, No. :0 CV 00 OWW TAG, 00 WL 0, * (E.D.

7 Case :0-cv-00-PGR Document Filed 0//0 Page of 0 0 Cal. Jan., 00) ( An intervention of right under the amended rule may be subject to appropriate conditions or restrictions responsive among other things to the requirement of efficient conduct of the proceedings. ) (quoting Advisory Committee Notes to the Amendment to Rule ). The Court should not, however, order the Government to submit joint briefs with NRA, as suggested by Plaintiff. See Plf. Opp. to Mot. for Leave to Intervene by NRA at (Docket No. ). These matters can be addressed at the case management conference. Respectively submitted this th day of October, 00. DENNIS K. BURKE United States Attorney District of Arizona SUE A. KLEIN Assistant U.S. Attorney Arizona State Bar No. JOHN C. CRUDEN Acting Assistant Attorney General /s/ Luther L. Hajek LUTHER L. HAJEK Trial Attorney, D.C. Bar No. Environment and Natural Resources Division Natural Resources Section P.O. Box, Ben Franklin Station Washington, D.C Tel.: (0) luke.hajek@usdoj.gov JEAN E. WILLIAMS, Section Chief SETH M. BARSKY, Asst. Section Chief S. JAY GOVINDAN, Senior Trial Attorney Wildlife & Marine Resources Section Ben Franklin Station, P.O. Box Washington, DC 00- Tel: (0) 0-0 / Fax: (0) Jay.Govindan@usdoj.gov

8 Case :0-cv-00-PGR Document Filed 0//0 Page of 0 0 CERTIFICATE OF SERVICE I hereby certify that on this th day of October, 00, a copy of the foregoing Defendants Response to the National Rifle Association s Motion for Leave to Intervene was filed electronically. Notice of this filing will be sent via the Court s electronic case filing (ECF) system to all counsel of record, listed below: Adam F. Keats John T. Buse Center for Biological Diversity California Street, Suite 00 San Francisco, CA 0 Tel.: () - akeats@biologicaldiversity.org jbuse@biologicaldiversity.org Attorneys for Plaintiff C.D. Michel Michael & Associates, PC 0 E. Ocean Blvd., Suite 00 Long Beach, CA 00 Tel: () - cmichel@michelandassociates.com David T. Hardy E. Tanque Verde, No. 0 Tuscon, AZ - Tel: (0) -0 dhardy@michelandassociates.com Attorneys for Proposed Intervenor /s/ Luther L. Hajek LUTHER L. HAJEK