Alaska Industrial Development and Export Authority v. Biden et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
ALASKA INDUSTRIAL
DEVELOPMENT AND EXPORT
AUTHORITY, et al.,
Plaintiffs,
and
STATE OF ALASKA,
Intervenor-
Plaintiff,
v.
JOSEPH R. BIDEN, JR., et al.,
Defendants.
Case No. 3:21-cv-00245-SLG
ORDER RE: MOTIONS TO INTERVENE
Before the Court are two motions to intervene by:
• At Docket 23, Native Village of Venetie Tribal Government, Arctic
Village Council, and Venetie Village Council (the “Venetie Movants”);
and
• At Docket 24, Gwich’in Steering Committee, Alaska Wilderness
League, Alaska Wildlife Alliance, Canadian Parks & Wilderness
Society–Yukon, Defenders of Wildlife, Environment America, Inc.,
Friends of Alaska National Wildlife Refuges, National Wildlife
Federation, National Wildlife Refuge Association, Northern Alaska
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Environmental Center, Sierra Club, The Wilderness Society, and
Wilderness Watch (the “Gwich’in Movants”).
Both Movants seek to intervene as defendants.1 Neither the Federal Defendants
nor Plaintiffs filed responses to the Movants’ motions. Intervenor-Plaintiff State of
Alaska responded in opposition at Docket 35, and Movants replied at Dockets 38
and 39. Oral argument was not requested and was not necessary to the Court’s
determination.
Rule 24(a)(2) of the Federal Rules of Civil Procedure requires district courts
to allow a party to intervene as a matter of right if the party “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.” This rule requires motions to intervene as of right to satisfy the
following four-part test:
(1) the motion must be timely; (2) the applicant must claim a
significantly protectable interest relating to the property or transaction
which is the subject of the action; (3) the applicant must be so situated
that the disposition of the action may as a practical matter impair or
impede its ability to protect that interest; and (4) the applicant’s
interest must be inadequately represented by the parties to the
action.2
1 Docket 23-1 at 15–16; Docket 24 at 2–3.
2 Wilderness Soc’y v. U.S. Forest Serv., 630 F.3d 1173, 1177 (9th Cir. 2011) (en banc) (internal
quotations omitted) (quoting Sierra Club v. EPA, 995 F.2d 1478, 1481 (9th Cir. 1993)).
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“[T]he requirements for intervention are [to be] broadly interpreted in favor of
intervention.”3
The Venetie and Gwich’in Movants both satisfy this test. First, this litigation
is at an early stage, and any prejudice to the existing parties from Movants’
intervention will be minimal.4 Both motions were filed before service on the Federal
Defendants was effected. Federal Defendants’ responsive pleading is not due until
May 16, and the administrative record is not due to be filed until early June.5 Thus,
the motions were timely filed.
Second, both Movants have significant protectable interests in the Federal
government’s handling of the ANWR Coastal Plain land leases. “A would-be
intervenor has a significant protectable interest if the interest is protected by law
and there is a relationship between that interest and the claim or claims at issue.”6
Here, the declarations supplied establish that the Venetie Movants and the
Gwich’in Movants’ tribal members have significant cultural and subsistence
interests in the land at issue in light of the seasonal movements of the Porcupine
3 Smith v. L.A. Unified Sch. Dist., 830 F.3d 843, 853 (9th Cir. 2016) (second alteration in original)
(quoting United States v. Alisal Water Corp., 370 F.3d 915, 919 (9th Cir. 2004)).
4 See Alisal Water, 370 F.3d at 921 (quoting Cal. Dep’t of Toxic Substances Control v. Com. Realty
Projects, Inc., 309 F.3d 1113, 1119 (9th Cir. 2002)) (“Timeliness is a flexible concept; its
determination is left to the district court’s discretion. . . . Courts weigh three factors in determining
whether a motion to intervene is timely: ‘(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.’”).
5 Docket 33 at 1 (Scheduling Order).
6 Cooper v. Newsom, 13 F.4th 857, 865 (9th Cir. 2021).
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caribou herd across tribal lands.7 The declarations also establish that the other
Gwich’in Movants have significant interests in the land for subsistence, recreation,
and wilderness preservation.8 These interests are legally protected,9 and are
related to the administrative and environmental law claims at issue in the case.
Thus, both Movants have significant protectable interests related to this action.
Third, a ruling in this case might impair both Movants’ interests. Plaintiffs
and the State of Alaska challenge the Federal Defendants’ moratorium on oil and
gas leases on the Coastal Plain.10 In making its judgment, the Court might decide
threshold questions of the Federal Defendants’ implementation of and obligations
under the 2017 Tax Act in a way that precludes determinations in subsequent
litigation.11 Because disposition of the present action might impair both Movants’
significant protectable interests, the third factor is satisfied.
7 Docket 23-4 at 2–4; Docket 23-5 at 2–5; Docket 23-6 at 2–5; Docket 24-4 at 6–11.
8 Docket 24-2 at 12–13; Docket 24-3 at 6–7; Docket 24-6 at 10; Docket 24-7 at 17–19, 24; Docket
24-8 at 3–7, 9–10; Docket 24-9 at 3–5, 9; Docket 24-10 at 4–9; Docket 24-11 at 9–10, 13; Docket
24-12 at 7–9; Docket 24-13 at 5, 10–11; Docket 24-14 at 8–9; Docket 24-15 at 6, 14–23; Docket
24-16 at 5, 9; Docket 24-17 at 2–4, 9–13; Docket 24-18 at 4–5, 7–9; Docket 24-18 at 12, 19–24;
Docket 24-19 at 6–7; Docket 24-20 at 4–16.
9 See, e.g., Native Village of Quinhagak v. United States, 35 F.3d 388, 393–94 (9th Cir. 1994)
(explaining that ANILCA represents a “clear congressional directive” to protect the physical and
cultural aspects of subsistence living); Citizens for Balanced Use v. Mont. Wilderness Ass’n, 647
F.3d 893, 897–98 (9th Cir. 2011) (holding that interest in conserving the wilderness character of
an area protected by federal law was a significant protectable interest for the purposes of
intervention).
10 Docket 22 at 5–14 (State’s Compl. in Intervention); Docket 34 at 10–41 (2nd Amend. Compl.).
11 Cf. Sierra Club v. EPA, 995 F.2d 1478, 1486 (9th Cir. 1993) (“Although [the intervenor] might
challenge various determinations in [subsequent] proceedings, those proceedings would be
constrained by the stare decisis effect of the lawsuit from which it had been excluded.”), abrogated
on other grounds by Wilderness Soc’y, 630 F.3d at 1178–81.
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Fourth, the Federal Defendants may not adequately represent both
Movants’ interests. “The burden of showing inadequacy of representation is
minimal and [is] satisfied if the applicant can demonstrate that representation of its
interests may be inadequate.”12 The adequacy of representation by an existing
party turns on “(1) whether the interest of a present party is such that it will
undoubtedly make all of a proposed intervenor's arguments; (2) whether the
present party is capable and willing to make such arguments; and (3) whether a
proposed intervenor would offer any necessary elements to the proceeding that
other parties would neglect.”13
The State of Alaska—the only party opposing Movants’ interventions—does
not contest the potential inadequacy of representation.14 Normally, the fact that
the Federal Defendants and the Movants share the same “ultimate objective”—
namely, upholding the moratorium—would create a presumption that the Federal
Defendants adequately represent the Movants’ interests.15 Here, however, the
Movants’ and the Federal Defendants’ interests are not “sufficiently congruent,”
which rebuts any such presumption.16 The Federal Defendants represent the at-
12 W. Watersheds Project v. Haaland, 22 F.4th 828, 840 (9th Cir. 2022) (internal quotation marks
omitted) (quoting Citizens for Balanced Use, 647 F.3d at 898).
13 Id. at 840–41 (quoting Citizens for Balanced Use, 647 F.3d at 898).
14 See Docket 35 at 8–13 (disputing only factors (2) and (3) of the intervention-of-right test).
15 Id. at 841.
16 Sw. Ctr. for Biological Diversity v. Berg, 268 F.3d 810, 823 (9th Cir. 2001).
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large interests of the general public, while the Venetie and Gwich’in Movants
represent specialized interests that seek only the preservation of the subsistence,
cultural, and wilderness aspects of the lands at issue. Moreover, because the
Federal Defendants have not yet filed their responsive pleading, the Court is
unable to say for certain that they will “undoubtedly make” all the Movants’
arguments. Interpreting the requirement “broadly in favor of intervention,”17 the
Court therefore concludes that both Movants have demonstrated that the Federal
Defendants’ representation of their interests may be inadequate.
Because the Movants have established each of the four requisite factors,
the Court concludes that the Venetie Movants and the Gwich’in Movants have both
met the criteria to intervene as of right in the present matter.
Furthermore, even if the Movants were not entitled to intervene as of right,
the Court would allow them each to intervene permissively. Rule 24(b) allows a
district court to permit a party to intervene permissively upon timely motion if the
party either “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.”18
17 Smith, 830 F.3d at 853 (quoting Alisal Water, 370 F.3d at 919).
18 Fed. R. Civ. P. 24(b)(1)(A)-(B); see also Nw. Forest Res. Council v. Glickman, 82 F.3d 825, 839
(9th Cir. 1996) (“We have held that a court may grant permissive intervention where the applicant
for intervention shows: (1) independent grounds for jurisdiction; (2) the motion is timely; and (3)
the applicant’s claim or defense, and the main action, have a question of law or a question of fact
in common.”). The independent-jurisdiction factor does not apply in federal question cases unless
a proposed intervenor seeks to bring new state-law claims. Freedom from Religion Found., Inc.
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As discussed above, the early stage of this litigation makes both Movants’
motions timely. And both Movants’ proposed pleadings demonstrate that they
intend to raise defenses and arguments directly on point to the Plaintiffs’ and State
of Alaska’s challenges to the lease moratorium.19 Thus, even if Movants were not
entitled to intervene as of right, the Court would allow each of them to intervene
permissively in this matter.
For these reasons, the motions to intervene at Dockets 23 and 24 are both
GRANTED. Both Movants shall abide by the terms of the existing Scheduling
Order at Docket 33 and shall use their best efforts to effectively coordinate with
counsel for the Federal Defendants to avoid unnecessary duplicative briefing of
matters covered in merits briefs.
IT IS SO ORDERED.
DATED this 18th day of April, 2022, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
v. Geithner, 644 F.3d 836, 844 (9th Cir. 2011).
19 See Docket 23-2 at 24–28; Docket 23-3 at 7–12; Docket 24-27 at 25–31; Docket 24-28 at 9–
14.
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