State of Alaska v. Bernhardt et al

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UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
State of Alaska, )
)
Plaintiff, ) 3:17-CV-00013-JWS
)
vs. ) ORDER AND OPINION
)
) [Re: Motion at docket 6]
Ryan Zinke, Secretary of the Interior, )
et al., )
)
)
Defendants. )
)
I. MOTION PRESENTED
The State of Alaska (“State”) filed suit in January 2017 to challenge federal
regulations, promulgated by the National Park Service (“NPS”) and the United States
Fish and Wildlife Service (“FWS”), governing sport hunting of predators within Alaska’s
National Preserves and National Wildlife Refuges. A month later, at docket 6, a group
of fifteen conservation organizations (“Applicants”) filed a motion to intervene as
defendants. The State filed an opposition at docket 46. The named defendants
representing the federal government (“Federal Defendants”) did not file a response.
Case 3:17-cv-00013-SLG Document 54 Filed 05/03/17 Page 1 of 9

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Applicants filed their reply at docket 49. Oral argument was not requested and would
not assist the court.
II. BACKGROUND
The lawsuit at issue here involves the application of the State’s intensive
predator management program, which liberalizes hunting regulations for predator
species such as wolves and bears in part to improve the levels of prey species for
human harvest, on federal lands. The history of the State’s predator management
program and the State’s attempt to implement the program on federal lands has been
thoroughly set forth in the Applicants’ memorandum at docket 7 and need not be
repeated here. For purposes of this order, it suffices to say that a state’s hunting
regulations apply on federal lands only to the extent they are compatible with federal
mandates. Based on perceived incompatibilities, the FWS and NPS objected to the
application of the State’s regulations that authorized liberalized hunting practices—such
as harvesting brown bears over bait; taking wolves and coyotes during denning season;
expanding season lengths and increasing bag limits; and authorizing same-day
airborne take of bears at registered bait stations—within Alaska’s National Preserves
and Wildlife Refuges. The two agencies concluded that these predator-management
practices conflict with their mandates to conserve natural diversity and maintain natural
predator-prey relationships in National Preserves and Wildlife Refuges. They
requested that the State exclude National Preserves and Wildlife Refuges from the
state-authorized practices, but the State refused. Consequently, the FWS and NPS
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promulgated regulations prohibiting such hunting practices within Alaska’s National
Preserves and Wildlife Refuges, which the State now challenges in this lawsuit1.
The Applicants seek to intervene by right under Rule 24(a) of the Federal Rules
of Civil Procedure or, alternatively, by permission under Rule 24(b) in order to defend
the federal regulations. They contend that intervention in the lawsuit will allow them to
“protect their interest in the wildlife, habitat, and wilderness values of the National
Preserves and National Wildlife Refuges in Alaska from State-authorized sport hunting
methods designed to reduce predator population and artif icially inflate prey species.”2
III. DISCUSSION
Intervention by right
Rule 24(a) requires the court to grant intervention to anyone who (1) submits a
timely motion; (2) claims an interest relating to the property or transaction that is the
subject of the action; (3) is so situated that disposing of the action may, as a practical
matter, impair or impede the movant’s ability to protect its interest; and (4) is not
adequately represented by the existing parties.3 “While an applicant seeking to
intervene has the burden to show that these four elements are met, the requirements
are broadly interpreted in favor of intervention.”4 Here, there is no dispute as to the
motion’s timeliness: it was filed less than a month after the State’s complaint and before
1The State’s challenge to the FWS regulations has since become moot given House
Resolution 69, which nullifies those regulations. See infra pp. 5-6 and note 13.
2Doc. 7 at p. 3.
3Fed. R. Civ. P. 24(a)(2); see also Citizens for Balanced Use v. Mont. Wilderness Ass’n,
647 F.3d 893, 897 (9th Cir. 2011).
4Citizens for Balanced Use, 647 F.3d at 897.
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the Federal Defendants filed an answer. Furthermore, the State does not challenge the
Applicants’ argument that they have a significant protectable interest in the action,
namely an “interest in protecting the natural balance of predators in National Preserves
and Wildlife Refuges,” nor does it challenge the Applicants’ argument that disposal of
this action could practically impair their ability to protect that interest. The only issue
raised in the State’s opposition is whether the Applicants would be adequately
represented by the Federal Defendants.
In making a determination about adequacy of representation under Rule 24(a),
the court must consider three factors: “(1) whether the interest of a present party is
such that it will undoubtedly make all the intervenor’s arguments; (2) whether the
present party is capable and wiling to make such arguments; and (3) whether the
would-be intervenor would offer any necessary elements to the proceedings that other
parties would neglect.”5 The most important factor to consider when assessing the
adequacy of representation is a comparison of the existing parties’ interests with the
applicant’s interests.6 The burden of showing inadequacy of representation is
“minimal.”7 That is, the applicant only needs to show that the existing parties’
representation “may be” inadequate.8 If, however, the applicant for intervention and an
existing party have the same “ultimate objective,” a presumption of adequacy arises,
5Sw. Ctr. for Biological Diversity v. Berg, 268 F.3d 810, 822 (9th Cir. 2001).
6Arakaki v. Cayetano, 324 F.3d 1078, 1086 (9th Cir. 2003).
7Sw. Ctr. for Biological Diversity, 268 F.3d at 823 (citing Trbovich v. United Mine
Workers, 404 U.S. 528, 538 n.10 (1972)).
8Id. (citing Trbovich, 404 U.S. at 538 n.10).
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and the applicant must rebut that presumption with a compelling showing of inadequate
representation.9
The State’s opposition to the Applicants’ motion relies on a presumption of
adequacy. It argues that the Applicants share the same “ultimate objective” as the
Federal Defendants—defending the legality of the challenged regulations—and
therefore a presumption of adequacy exists. They argue that “the Applicants [must]
show that their interests would not be protected in the event the regulations are upheld
as legally valid, or that the Applicants and [Federal] Defendants have ‘fundamentally
differing points of view’ on the litigation as a whole.”10 The State relies on Citizens for
Balanced Use v. Montana Wilderness Ass’n, where the Ninth Circuit rejected the
plaintiff’s argument that the applicant and the federal agency defendant had the same
ultimate objective, concluding that the two had “fundamentally differing points of view”
regarding the litigation.11 In that case, the agency adopted the order at issue only after
the applicants had forced it to do so through previous litigation and was appealing the
decision that forced it to make the rule.12 The State also cites County of Fresno v.
Andrus, where the Ninth Circuit concluded that the federal defendant, the Department
of the Interior, did not adequately represent the interest of the applicants because it had
9Arakaki, 324 F.3d at 1086; Citizens for Balanced Use, 647 F.3d at 898.
10Doc. 46 at p. 8. The state cites Perry v. Proposition 8 Official Proponents, 587 F.3d
947, 951 (9th Cir. 2009) and Citizens for Balanced Use, 647 F.3d at 899.
11647 F.3d at 899.
12Id.
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not appealed the grant of a preliminary injunction and it only began its rulemaking after
the applicant brought suit against it.13
The Applicants argue that the State has misinterpreted the case law applying the
heightened burden. They argue that the cases do not stand for the proposition that an
applicant and federal agency share unified objectives simply because they are taking
the same position in the litigation. They argue that the cases the State relies on are
merely examples of situations where an applicant and a federal defendant have
divergent interests and that the cases do not stand f or the proposition that a federal
defendant and an applicant both seeking to defend regulations share an ultimate
objective unless the federal defendant had taken a contrary position prior to the
litigation or where there was some delay or reluctance on the part of the defendant in
relation to the regulation at issue. The Applicants argue that the analysis regarding the
presumption of adequacy is broader and more fact-based, focusing on the existing
parties’ overall interests and objectives as compared to the applicant’s.
The court need not decide whether the State misinterpreted what it means to
have the same “ultimate objective.” Here, the Federal Defendants’ ultimate objective is
unknown given that they have not yet filed an answer and did not file any response to
the Applicants’ motion to intervene. Any assumption that the Federal Defendants would
necessarily defend their own regulations is unwarranted here because there has been
an administration change since the regulations were promulgated and the President
13622 F.2d 436, 439 (9th Cir. 1980).
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recently signed House Joint Resolution 69, nullifying the challenged FWS regulations.14
The new administration’s nullification of the FWS’s regulations relating to the State’s
predator control program is an action that is detrimental to the Applicants’ interests and
shows that even if the Federal Defendants once presumably shared the same ultimate
objective as to the remaining NPS regulations, it is no longer reasonable to presume as
much now. The Federal Defendants’ representation of the Applicants’ interest may be
inadequate given these facts.
Moreover, even if the Federal Defendants plan to defend the remaining NPS
regulations and that alone is sufficient under the case law to constitute a unity of
objectives for the purposes of applying a presumption of adequacy, the Applicants have
made a compelling showing of inadequate representation to rebut that presumption and
permit intervention. The signing of House Joint Resolution 69 raises serious doubts
about whether the Federal Defendants will make all the same arguments as the
Applicants and whether they are still willing to make such arguments. As the Applicants
note in their reply, “[i]t is fair to assume that an administration that is willing to nullify the
challenged FWS regulations with the stroke of a pen may not vigorously defend similar
NPS regulations in this litigation.”15 Evidence of the Federal Defendants’ multi-faceted
mandates and obligations as compared to the Applicants’ more narrow interests—as
14See Press Release, President Donald J. Trump Signs H.J.Res. 69, H.J.Res. 83, H.R.
1228, S.J.Res. 34 into Law (April 3, 2017),
https://www.whitehouse.gov/the-press-office/2017/04/03/president-donald-j-trump-signs-hjres-6
9-hjres-83-hr-1228-sjres-34-law; see also doc. 46 at p. 2 n.3.
15Doc. 49 at p. 6.
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thoroughly set forth in the Applicants’ reply brief16—bolsters the Applicants’ argument
that there is no guarantee that the Federal Defendants will make all their arguments.
Permissive Intervention
Alternatively, even if intervention is not warranted as of right under Rule 24(a),
the court exercises its discretion under Rule 24(b) to allow the Applicants to intervene
based on the situation presented. Permissive intervention under Rule 24(b) should be
granted when the applicant (1) demonstrates an independent ground for jurisdiction;
(2) files a timely motion; and (3) presents a claim or defense that shares a common
question of law or fact.17 The State concedes that the Applicants have met these three
factors but argues that because the Federal Defendants will adequately defend the
NPS regulations, the court should use its discretion to deny intervention. For the same
reasons as set forth above, the court concludes that the Applicants shou ld be able to
participate in the lawsuit. Indeed, their presence will “assist the court in its orderly
procedures leading to the resolution of this case, which [will] impact[] large and varied
interests.”18
16Id. at pp. 7-11.
17Fed. R. Civ. P. 24(b)(1)(B); Blum v. Merrill Lynch Pierce Fenner & Smith, Inc., 712
F.3d 1349, 1353 (9th Cir. 2013).
18Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094, 1111 (9th Cir. 2002), abrogated
on other grounds by Wilderness Soc’y v. U.S. Forest Serv., 630 F.3d 1173, 1177-78, 1180 (9th
Cir. 2011).
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IV. CONCLUSION
Based on the preceding discussion, the Applicants’ motion to intervene at docket
6 is GRANTED.
DATED this 3rd day of May 2017.
/s/ JOHN W. SEDWICK
SENIOR JUDGE, UNITED STATES DISTRICT COURT
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