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Western Energy Alliance v. Jewell

United States District Court, D. New Mexico

March 1, 2017

WESTERN ENERGY ALLIANCE, Plaintiff,
v.
SALLY JEWELL, in her official capacity as Secretary of the United States Department of the Interior, and BUREAU OF LAND MANAGEMENT, Defendants, and THE WILDERNESS SOCIETY, WYOMING OUTDOOR COUNCIL, SOUTHERN UTAH WILDERNESS ALLIANCE, SAN JUAN CITIZENS ALLIANCE, GREAT OLD BROADS FOR WILDERNESS, SIERRA CLUB, WILDEARTH GUARDIANS, CENTER FOR BIOLOGICAL DIVERSITY, and EARTHWORKS, Applicants for Intervention.

          MEMORANDUM OPINION AND ORDER GRANTING APPLICANTS' MOTION FOR STAY ON COUNTS 2 & 3 AND ORDERING STAY ON COUNT 1

         THIS MATTER comes before the Court upon a Motion to Stay Proceedings on Claims 2 and 3 Pending Appeal of Order Denying Motion to Intervene, filed January 20, 2017 (Doc. 44). Having reviewed the parties' briefs and applicable law, the Court finds that Applicants' Motion is well-taken and, therefore, is granted. In addition, the Court will also stay Count 1 of the complaint.

         BACKGROUND

         In this case, Plaintiff Western Energy Alliance (“Plaintiff” or “Western Energy”) asserts claims in connection with a new Bureau of Land Management (“BLM”) policy reforming oil and gas leasing on public lands (“Leasing Reform Policy”). The complaint asserts three counts: a Freedom of Information Act (“FOIA”) Violation, 5 U.S.C. §552 (Count 1); a request for a declaration that BLM's leasing policies and practices violate the Mineral Leasing Act, 30 U.S.C. §226(b)(1)(A) (Count 2); and an assertion that BLM's actions in scheduling and administering oil and gas lease sales violates the Mineral Leasing Act (Count 3). Applicants for Intervention (“Applicants”) represent environmental groups seeking to protect public lands from the impacts of oil and gas development.

         Applicants filed a motion to intervene on Counts 2 and 3. The Court recently denied the motion (Doc. 38), and Applicants filed an appeal in the Tenth Circuit Court of Appeals, which is currently pending (Doc. 41). They now seek a stay on Claims 2 and 3 pending a decision by the Tenth Circuit on their intervention appeal. Plaintiff opposes the motion, contending that a stay will continue to exacerbate the ongoing and continuing injuries caused by BLM's failure to adhere to the agency's statutory obligations.

         DISCUSSION

         A party is entitled to immediately appeal an order denying a motion to intervene. WildEarth Guardians v. U.S. Forest Serv., 573 F.3d 992, 994 (10th Cir. 2009) (citing Coal. Of Ariz./N.M. Ctys. for Stable Econ. Growth v. Dep't of the Interior, 100 F.3d 837, 839 (10th Cir. 1996)) (“[A]n order denying intervention is final and subject to immediate review if it prevents the applicant from becoming a party to an action.”). To determine whether to grant a stay of proceedings pending appeal, courts look to four factors:

(1) whether the stay applicant has made a strong showing that [the applicant] is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.

Hilton v. Braunskill, 481 U.S. 770, 776 (1987); see Homans v. City of Albuquerque, 264 F.3d 1240, 1243 (10th Cir. 2001) (stating the similar showing required in Tenth Circuit for a stay pending appeal); 10th Cir. R. 8.1 (same).

         I. Likelihood of Success on Merits of Intervention Appeal

         In its decision denying intervention (Doc. 38, “Order Denying Intervention”), the Court found that Applicants had met the first two requirements for intervention under Fed.R.Civ.P. Rule 24: their motion was timely and they had shown a legally-protectable interest in the case. This opinion therefore addresses only the other two requirements on which the Court rejected Applicants' arguments: (1) potential impairment of those interests and (2) inadequacy of representation.

         The Court agrees with Plaintiff that Applicants' arguments in this category are a repackaging of those made in the original motion to intervene. In its Order Denying Intervention, the Court found that Applicants generally mischaracterized Plaintiff's claims, making it appear that Western Energy was challenging BLM's discretionary authority to determine when federal lands were available for oil and gas leasing and seeking a declaration from the Court that a mere “expression interest” by an oil and gas company makes a land parcel “available for leasing” under the Leasing Reform Policy and the Mineral Leasing Act (“MLA”). The Court discussed Applicants' view of the lawsuit and found their description of Plaintiff's claims to be unfounded based on the allegations in Plaintiff's complaint. There is no need at this point for the Court to go through that exercise again, since the Court's discussion of this issue can be found in the Order Denying Intervention. See Doc. 38 at 10-15. It is enough here to say that misrepresentation of Plaintiff's claims creates the false impression that the Applicants' interests are far apart from Plaintiff's, which would mean that Applicants' interests would be impaired if they are not allowed to participate in this case. If the Court is mistaken regarding its view of Plaintiff's position in this lawsuit, and Western Energy is indeed challenging the reforms contained in the Leasing Reform Policy which the conservation groups (Applicants) worked hard for years to achieve, then of course Applicants would have a strong likelihood of success on the merits of their intervention appeal. Applicants also represented that the current Leasing Reform Policy is a negotiated document representing concessions made by the conservation groups. However, the fact that the current policy does not actually represent Applicants' would-be interests has no relevance here because this lawsuit involves the current BLM Leasing Reform Policy, not what Applicants would have wanted it to be. In other words, Applicants' “interests” must be considered only in the context of the policy that exists now because this lawsuit will not be litigating the changes Applicants would like to see made to the policy.

         In the Order Denying Intervention, the Court also found that Applicants were not entitled to intervene under Rule 24 because they are adequately represented by BLM in this lawsuit. In the hearing on Applicants' Motion to Intervene, the Court heard various arguments from Applicants as to why BLM could not adequately represent their interests. The Court considered relevant law on this issue, particularly N.M. Off-Highway Vehicle All. V. U.S. Forest Serv., in which the Tenth Circuit Court of Appeals reversed this court's denial of a motion to intervene by various environmental groups. 540 F.App'x 877, 880 (10th Cir. 2013). In that case, the Tenth Circuit stated that it has “repeatedly recognized that it is impossible for a government agency to protect both the public's interests and the would-be intervenor's private interests.” Doc. 38 at 20, n.7. This Court pondered whether that statement means that motions to intervene by conservation groups would automatically be granted in environmental cases involving a federal agency and there would be no need to ever consider the adequacy of representation factor in such cases. Id. However, this Court lviewed the Tenth Circuit's holding in N.M. Off-Highway case in light of the particular facts of that case, and also relied on a dissent written by Judge Neil Gorsuch for Applicants' argument that the agency's objective could “shift” during litigation. If the Tenth Circuit determines that this Court should have followed N.M. Off-Highway and that the facts of this case are not distinguishable from that case, then Applicants will likely succeed on the merits of their intervention appeal.

         The Tenth Circuit has adopted a liberal definition of the “probability of success” requirement. Tri-State Generation and Transmission Assoc., Inc. v Shoshone River Power, Inc., 805 F.2d 351 (10th Cir. 1986). If a Plaintiff shows the presence of the other elements, it will ordinarily be enough that the Plaintiff has raised questions going to the merits so serious, substantial, difficult and doubtful as to make them a fair ground for litigation and thus for more deliberate investigation. Id. Injury is generally not irreparable and will not support a preliminary injunction if compensatory relief would be adequate. This approach would be applicable here even if Applicants did not show a strong likelihood of success on the merits.

         II. ...


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