Case 1:08-cv SJM Document 26 Filed 04/07/09 Page 1 of 6 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

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1 Case 1:08-cv SJM Document 26 Filed 04/07/09 Page 1 of 6 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA FOREST SERVICE EMPLOYEES FOR ENVIRONMENTAL ETHICS; ALLEGHENY DEFENSE PROJECT; SIERRA CLUB, Plaintiffs, v. Civil Action No Erie UNITED STATES FOREST SERVICE, Judge Sean J. McLaughlin Defendant. McLAUGHLIN, SEAN J., J. MEMORANDUM OPINION This matter is before e Court upon e Motion for Leave to Intervene pursuant to Rule 24 of e Federal Rules of Civil Procedure filed by e Pennsylvania Oil and Gas Association and e Allegheny Forest Alliance. I. BACKGROUND In e underlying lawsuit, plaintiffs seek declaratory and injunctive relief against e United States Forest Service under e Administrative Procedure Act, 5 U.S.C. 701 ( APA, for alleged violations of e National Environmental Policy Act, 42 U.S.C ( NEPA. Specifically, e plaintiffs allege in eir complaint at e Forest Service violated NEPA by issuing Notices to Proceed to various oil and gas companies operating wiin e boundaries of e Allegheny National Forest ( ANF. Plaintiffs contend at e Forest Service violated federal law by failing to prepare a NEPA analysis in order to determine e impact, if any, at issuing e Notices to Proceed would have on e environment prior to eir issuance. The proposed intervenors in is action are e Pennsylvania Oil and Gas association ( POGAM, a non-profit trade association consisting of e Commonweal s independent oil and 1

2 Case 1:08-cv SJM Document 26 Filed 04/07/09 Page 2 of 6 gas producers, and e Allegheny Forest Alliance ( AFA, a non-profit coalition of public school districts, municipalities, and businesses wi interests affected by e welfare of e ANF. POGAM s membership includes, inter alia, corporations, individuals and oer business entities at own oil and gas rights wiin e ANF. (Motion to Intervene, p As an organization, POGAM seeks to maintain an ongoing dialogue wi state and federal agencies and commissions in order to ensure at oil and gas operations are not subject to undue regulatory constraints. (Id. The oer proposed intervenor, AFA, seeks to promote and support sustainable development wiin e ANF, including sustainable forestry and environmental stewardship. (Id. at 5. POGAM asserts at many of eir members have easements for e use of e surface of e ANF at are dominant to e surface estate, giving ose members e right to use e surface to develop oil and gas interests wiout e additional constraints and burdens at might be imposed upon eir claimed estates by e preparation of a NEPA analysis. (Id. at 4. They contend at, because e Forest Service s ownership interest in e ANF is subservient to e mineral and oil rights of eir members, e Forest Service lacks e discretion and auority to deny e exercise of mineral and oil rights or to require a NEPA analysis prior to auorizing such activities. On December 26, 2008, POGAM and AFA filed a motion for leave to intervene pursuant to Federal Rules of Civil Procedure 24(a and (b. The Forest Service does not oppose e motion. Plaintiffs, however, filed a brief in opposition on February 6, For e reasons at follow, e motion will be granted. II. DISCUSSION The proposed intervenors seek to intervene in is action based upon Federal Rule of Civil Procedure 24(a(2, which provides for intervention as a matter of right, and Rule 24(b, which allows for permissive intervention. Rule 24(a(2 provides in pertinent part: (a Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action... (2 when e applicant claims an interest relating to e property or transaction which is e subject of e action and e applicant is so situated at e disposition of e action may as a practical matter impair or impede e applicant s ability to protect at interest, unless e applicant s interest is adequately represented by existing parties. 2

3 Case 1:08-cv SJM Document 26 Filed 04/07/09 Page 3 of 6 Fed. R. Civ. Pro. 24(a(2. The Third Circuit has interpreted Rule 24(a to require proof of four elements from e party or parties seeking intervention: first, a timely application for leave to intervene; second, a sufficient interest in e litigation; ird, a reat at e interest will be impaired or affected, as a practical matter, by e disposition of e action; and four, inadequate representation of e prospective intervenor s interest by e existing parties to e litigation. rd Kleissler v. United States Forest Service, 157 F.3d 964, 969 (3 Cir (citing, e.g., Mountain rd Top Condo. Ass n. v. Dave Stabbert Master Builder, Inc., 72 F.3d 361, (3 Cir Plaintiffs concede at e application for leave to intervene is timely and, implicitly, at e proposed intervenors interests (if established would not be adequately represented by e existing parties. Plaintiffs dispute, however, at e proposed intervenors have set for a direct, concrete, non-remote interest at will be affected by e lawsuit. In determining wheer a sufficient interest in e litigation has been alleged, e Third Circuit has explained at: Kleissler, 157 F.3d at 972. [T]he polestar for evaluating a claim for intervention is always wheer e proposed intervenor s interest is direct or remote. Due regard for efficient conduct of e litigation requires at intervenors should have an interest at is specific to em, is capable of definition, and will be directly affected in a substantially concrete fashion by e relief sought. The interest may not be remote or attenuated. In Kleissler, several private entities and environmental protection groups brought suit alleging at e Forest Service had violated statutory requirements in approving two projects at permitted substantial logging activities in e ANF. The plaintiffs requested an injunction halting all logging activity and cancelling or suspending future logging operations in e ANF. Id. at 967. Shortly ereafter, several parties moved to intervene including: school districts who received funds from receipts of logging operations in e forest; timber companies wi existing contracts to cut timber in e forest; timber companies wi future contracts to cut timber in e forest; timber companies who had no existing contracts to operate in e forest but who generate substantial income from operations erein; and a nonprofit corporation, Allegheny Hardwood, who indicated at many of its members held contracts in e forest or expected to bid on future contracts at might be affected by e litigation. Id. at 968. After comprehensively reviewing relevant cases from oer circuits, e Third Circuit held 3

4 Case 1:08-cv SJM Document 26 Filed 04/07/09 Page 4 of 6 at each of e proposed intervenors had a sufficient interest in e litigation to compel intervention. Significantly, e Court concluded at e trade association, Allegheny Hardwood, fell wiin e category of ose trade associations representing reatened businesses granted intervention in cases such as Sierra Club v. Glickman, 82 F.3d 106, 108 (5 Cir. 1996, and Sierra Club v. Espy, 18 F.3d 1202, 1203 (5 Cir In Glickman, e Fif Circuit allowed a trade association at represented farmers who pumped water from an aquifer for irrigation purposes to intervene in a suit brought by parties seeking to restrict access to e aquifer. Glickman, 82 F.3d at 109. In Espy, e Court permitted two trade groups whose members included several major purchasers and processors of timber to intervene in a suit challenging e Forest Service s management practices in Texas forests. Espy, 18 F.3d at Relying on ose decisions, Kleissler concluded at e interests of e private-party applicants are direct, not remote. In oer words, ey have more an mere attenuated economic interests.... Kleissler, 157 F.3d at 971. I conclude at e holding in Kleissler governs e instant motion to intervene. As in Kleissler, Glickman and Espy, e private parties at constitute e membership of POGAM and AFA have significantly protectable interests relating to e Plaintiffs challenge to e Forest Service s management practices. In particular, POGAM s members hold oil and mineral rights underlying e ANF at could be impaired or restricted depending upon e outcome of is litigation. As such, intervention is appropriate. In eir Brief in Opposition to e Motion to Intervene, plaintiffs tacitly acknowledge at some form of intervention by e proposed intervenors would likely be appropriate, but suggest at e intervenors should only be granted limited intervention, raer an full intervention. The limited intervention approach, espoused by e Nin Circuit in Forest Conservation Council v. United States Forest Service, 66 F.3d 1489 (9 Cir. 1995, restricts e intervenors from participating in e merits portion of e case but allows em to file briefs addressing e issue of remedy. This approach is premised upon Nin Circuit precedent which has held at since non-federal entities are not bound by e NEPA, full intervention by such parties is not appropriate. By allowing limited intervention, e Nin Circuit attempts to balance is principle wi e recognition at private parties have interests at would undeniably be affected by e outcome of e litigation. Forest Conservation Council, 66 F.3d at

5 Case 1:08-cv SJM Document 26 Filed 04/07/09 Page 5 of 6 The Third Circuit, however, has rejected e Nin Circuit s conclusion at private parties may not intervene on e merits in NEPA actions: These [Nin Circuit] cases seem to suggest at NEPA suits are sui generis because only e government can comply wi at statute. We are reluctant to endorse a narrow approach at makes e onus of compliance e litmus test for intervention. Such a wooden standard minimizes e flexibility and spirit of Rule 24 as interpreted in Cascade Natural Gas. See Espy, 18 F.3d at 1207 (permitting timber industry organization to intervene as a defendant in a NEPA case against e Service. The reality is at NEPA cases frequently pit private, state, and federal interests against each oer. Rigid rules in such cases contravene a major premise of intervention - e protection of ird parties affected by pending litigation. Evenhandedness is of paramount importance. Kleissler, 157 F.3d at (citing Cascade Natural Gas Corp. v. El Paso Natural Gas Co., 386 U.S. 129, (1967 (additional internal citations omitted. The Kleissler Court also suggested at e limited intervention approach might be difficult to apply wiout unduly attenuating e applicants interests. Id. at 972. Consistent wi Kleissler, I find at intervention on e merits is 1 appropriate here as well. IV. CONCLUSION For e reasons stated above, e Motion for Leave to Intervene is GRANTED. 1 This holding renders moot e proposed intervenors alternate request for permissive intervention under Rule 24(b. Rule 24(b provides at, [o]n timely motion, e court may permit anyone to intervene who... has a claim or defense at shares wi e main action a common question of law or fact. Fed. R. Civ. Pro. 24(b(1(B. Even if I were to assume arguendo at intervention as a matter of right was not appropriate, I would noneeless exercise my discretion and grant e intervenors application for permissive intervention. See, e.g., Kiamichi R.R. v. National Mediation Bd., 986 F.2d 1341, 1345 (10 Cir

6 Case 1:08-cv SJM Document 26 Filed 04/07/09 Page 6 of 6 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA FOREST SERVICE EMPLOYEES FOR ENVIRONMENTAL ETHICS; ALLEGHENY DEFENSE PROJECT; SIERRA CLUB, Plaintiffs, v. Civil Action No Erie UNITED STATES FOREST SERVICE, Judge Sean J. McLaughlin Defendant. ORDER AND NOW, is 7 day of April, 2009, and for e reasons set for in e accompanying Memorandum Opinion, IT IS HEREBY ORDERED at e Motion for Leave to Intervene pursuant to Rule 24 of e Federal Rules of Civil Procedure filed by e Pennsylvania Oil and Gas Association and e Allegheny Forest Alliance is hereby GRANTED. cm: All parties of record. /s/ Sean J. McLaughlin United States District Judge 6