In Re ENDANGERED SPECIES ACT SECTION 4 DEADLINE LITIGATION

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

IN RE ENDANGERED SPECIES ACT
SECTION 4 DEADLINE LITIGATION
Misc. Action No. 10-377 (EGS)
MDL Docket No. 2165
This Document Relates To:
ALL CASES

MEMORANDUM OPINION

I. INTRODUCTION

Plaintiffs Center for Biological Diversity (“CBD”) and

WildEarth Guardians (“Guardians”) filed the actions that comprise

this Multi-District Litigation (“MDL”). Plaintiffs bring these

actions to compel the Fish and Wildlife Service (“FWS”) and the

Secretary of the Interior (collectively “federal defendants”) to

comply with statutory deadlines when making the determination

whether to list hundreds of species as endangered or threatened

under the Endangered Species Act (“ESA”). These consolidated

cases - which are now on the verge of settlement - do not seek to

require FWS to reach any particular substantive decision on the

petitions to list the species. Rather, plaintiffs only seek, and

the settlements only provide, that the FWS be required to make a

determination in a somewhat timely fashion.

Pending before the Court is a motion to intervene as of

right, or, in the alternative, for permissive intervention filed

by Safari Club International (“SCI”). SCI requests intervention
so that it may oppose the settlement, because its members hunt

three of the species at issue: the greater sage grouse, the New

England cottontail, and the lesser prairie-chicken.1 SCI argues

that the outcome of the FWS listing determinations – i.e., if the

FWS ultimately decides to list the species as threatened or

endangered - may result in their inability to hunt the species.

This Court previously faced a nearly identical motion to

intervene in this MDL proceeding. In re Endangered Species Act

Section 4 Deadline Litigation, 270 F.R.D. 1 (D.D.C. 2010)

(hereinafter “In re ESA Litig.”). In that motion, TRC, a

corporation with an interest in seeing a particular species not

be listed moved to intervene, arguing that a decision to list the

species would injure its use of its property and its business

operations. The Court denied the motion to intervene because TRC

failed to demonstrate Article III standing. It held TRC’s

“alleged injury is based entirely on the potential substantive

outcome of the FWS’s listing determination for the [species at

issue], which is not before this Court.” Id. at 5. Because the

MDL is limited to the procedural issue of FWS’ alleged failures

to timely complete steps in the listing process, the Court found

that it would not be in a position to rule on the substantive

1
SCI initially included a fourth species, the plains
bison; however, FWS has already concluded that listing of this
species is not warranted. Fed. Defs.’ Opp’n to Mot. to Intervene
at 6 & n.2.

2
issue of whether a species should or should not ultimately be

listed as threatened or endangered. Accordingly, the Court

concluded that TRC’s claims of injury were neither caused by, nor

redressable in, the MDL. Id.

SCI’s motion to intervene is indistinguishable from TRC’s:

it is based solely on the potential substantive outcome of FWS’

endangerment determinations. That substantive outcome was not

before the Court in 2010, and it is not before the Court now.

Therefore, upon consideration of SCI’s motion, the responses and

replies thereto, the relevant law and the record as a whole, and

for the reasons stated herein, SCI’s motion to intervene is

DENIED.2

II. BACKGROUND

A. Statutory Background

The ESA was enacted for the purpose of providing “a means

whereby the ecosystems upon which endangered species and

threatened species depend may be conserved [and] ... a program

for the conservation of such endangered species and threatened

species[.]” 16 U.S.C. § 1531(b). The ESA requires the Secretary

of the Interior to publish and maintain a list of all species

2
Because the Court finds this issue may be resolved based
on the parties’ written submissions, the Court has exercised its
discretion to decline SCI’s request for a hearing. SCI Reply at
5.

3
that have been designated as threatened or endangered.3 Id. §

1533(c). Species are added to and removed from this list through

a notice and comment process, either on the initiative of the

Secretary or as a result of a petition submitted by an

“interested person.” Id. §§ 1533(b)(1), (3), (5).

The ESA establishes specific procedural steps for making a

listing determination. Within 90 days of receiving a listing

petition, the United States Fish and Wildlife Service (“FWS”)

must “[t]o the maximum extent practicable” determine whether “the

petition presents substantial scientific or commercial

information indicating that the petitioned action may be

warranted.” 16 U.S.C. § 1533(b)(3)(A). If the FWS determines on

this basis that listing may be warranted, it must promptly

commence a review of the species' status. Id. Within 12 months

of receiving the listing petition, the agency must have completed

its review and must make a finding that listing is either: (1)

not warranted; (2) warranted, but precluded by higher listing

priorities; or (3) warranted, in which case the FWS must publish

a proposed rule to list the species in the Federal Register. Id.

3
The Secretary of the Interior (for terrestrial species)
and the Secretary of Commerce (for marine species) are
responsible for making listing determinations. 16 U.S.C. §§
1532(15), 1533(a)(2). The Secretaries have delegated their
responsibilities under the Act to the FWS, in the case of
Interior, and to the National Marine Fisheries Service, in the
case of Commerce.

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§ 1533(b)(3)(B). The ESA permits no exceptions to this 12-month

mandatory deadline.

For any species that FWS determines falls into the second

category - that is, a species that may warrant listing, but is

precluded by higher priority actions - the species is considered

a candidate for listing under the ESA. See 2010 Candidate Notice

of Review (“CNOR”), 75 Fed. Reg. 69,222 (Nov. 10, 2010) (“A

candidate species is one for which we have on file sufficient

information on biological vulnerability and threats to support a

proposal to list as endangered or threatened, but for which

preparation of a proposal is precluded by higher priority listing

actions.”) Petitions for warranted-but-precluded species are

treated as petitions that present substantial scientific or

commercial information indicating that the petitioned action may

be warranted. Id. § 1533(b)(3)(C)(i). The ESA requires the FWS

to “implement a system to monitor effectively the status” of

warranted but precluded species and to “prevent a significant

risk to the well being of any such species.” Id. §

1533(b)(3)(C)(iii). FWS therefore must review the list of

candidate species annually, make one of the required findings -

warranted, not warranted, or warranted but precluded - and

publish its findings in the CNORs published annually in the

Federal Register.

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B. Factual and Procedural Background

This MDL arises out of a number of lawsuits challenging the

FWS’ failure to make timely findings, mandated by statutory

deadlines, for hundreds of species petitioned for listing by

Guardians and CBD. Specifically, the underlying lawsuits

challenge FWS’ failure to make the 90-day and 12-month findings

required by the ESA. 16 U.S.C. §§ 1533(b)(3)(A), (B).

In September 2010, the parties entered into mediation to try

to resolve plaintiffs’ claims. On May 10, 2011, Guardians and

the federal defendants filed a proposed settlement agreement in

Guardians’ underlying cases. On July 12, 2011, CBD and the

federal defendants filed a separate proposed settlement agreement

in CBD’s underlying cases. The settlements address FWS’ failures

to meet the specific deadlines challenged by the plaintiffs in

the underlying cases, and provide additional relief as well. In

particular, the settlements set a schedule for FWS to resolve the

backlog of candidate (i.e. warranted-but-precluded) species.

Guardians and Fed. Defs. Joint Motion for Approval of Settlement,

Doc. 31 at 17; CBD and Fed. Defs. Joint Motion for Approval, Doc.

42 at 4. Because the ESA provides no statutory deadline for the

FWS to make final determinations regarding candidate species, the

list of these species has grown to 251, many of which have been

on the candidate list for more than 10 years. 2010 CNOR, 75 Fed.

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Reg. 69,222. While on the candidate list, the species are

afforded no protection under the ESA.

The settlement agreements do not dictate that FWS reach any

particular substantive outcome on any petition or listing

determination. The agreements only require the FWS to make a

determination – to publish either proposed listing rules or not-

warranted findings - for the backlog of species on the 2010

candidate list by the end of fiscal year 2017. Guardians and

Fed. Defs. Stipulated Settlement Agreement (“Guardians

Agreement”), Doc. 31-1 at 6; CBD and Fed. Defs. Stipulated

Settlement Agreement (“CBD Agreement”), Doc. 42-1 at 5-6.

On June 27, 2011, two months after Guardians and the federal

defendants filed their settlement agreement and two weeks after

CBD and the federal defendants announced they had reached a

tentative agreement, SCI moved to intervene as a defendant in the

consolidated cases. SCI seeks to oppose the settlements because

they require FWS to take action on three species which have been

designated as warranted-but-precluded: the greater sage grouse,

the New England cottontail, and the lesser prairie chicken.

Motion to Intervene at 2. This motion is now ripe for

determination by the Court.

III. ANALYSIS.

SCI moves to intervene in this case as a matter of right

pursuant to Federal Rule of Civil Procedure 24(a) or, in the

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alternative, by permission of the Court pursuant to Federal Rule

of Civil Procedure 24(b). The Court addresses each request in

turn.

A. Intervention as of Right Under Rule 24(a)

Intervention as a matter of right under Rule 24(a) turns on

four factors: (1) timeliness; (2) whether the applicant claims a

protectable interest relating to the property or transaction that

is the subject of the action; (3) whether disposition of the

action may as a practical matter impair or impede the applicant’s

ability to protect that interest; and (4) whether the applicant’s

interest is adequately represented by other parties. See Fed. R.

Civ. P. 24(a); Fund for Animals Inc. v. Norton, 322 F.3d 728,

731-32 (D.C. Cir. 2003). In addition to satisfying these

criteria, a party seeking to intervene as of right must establish

Article III standing. Fund for Animals, 322 F.3d at 731; see

also United States v. Philip Morris USA, Inc., 566 F.3d 1095,

1146 (D.C. Cir. 2009); Ctr. for Biological Diversity v. EPA, 274

F.R.D. 305, 308 (D.D.C. 2011) (hereinafter “CBD v. EPA”); In re

ESA Litig., 270 F.R.D. at 4. “Because a prospective intervenor’s

Article III standing presents a question going to this Court’s

jurisdiction, the Court must address standing before considering

the four-part test for evaluating intervention as of right.” In

re ESA Litig., 270 F.R.D. at 4 (citing Fund for Animals, 322 F.3d

at 732; Sierra Club v. EPA, 292 F.3d 895, 898 (D.C. Cir. 2002)).

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 In Lujan v. Defenders of Wildlife, the Supreme Court

explained that “the irreducible constitutional minimum of

standing contains three elements:” (1) an injury-in-fact that is

(a) concrete and particularized and (b) actual and imminent, (2)

causation, and (3) redressability. 504 U.S. 555, 560 (1992).

This Court applied the Lujan test in considering the previous

motion to intervene in this MDL. See In re ESA Litig., 270

F.R.D. 1. This Court found that TRC had identified a potential

injury; specifically, if FWS listed a particular species of

salamander encompassed in the litigation, it could precipitate

restrictions on the use of TRC’s land. 270 F.R.D. at 5.

However, the Court found that TRC:

failed to satisfy the causation and redressability prongs of
the Article III standing test. TRC’s alleged injury is
based entirely on the potential substantive outcome of the
FWS’ listing determination for the [salamander], which is
not before this Court. The case before this Court deals
only with FWS’ alleged failure to complete a preliminary
step in the listing process within the time period required
by law. Because this Court will issue no order directly
impacting TRC’s use of its property, TRC’s claims of injury
from restrictions on its property use and business
operations bear no relation to the present action.

Id. The same is true here. Safari Club asserts that it and its

members have an interest in “the hunting and sustainable use

conservation of” the greater sage grouse, New England cottontail,

and lesser prairie chicken. SCI Mem. at 2. As SCI notes,

conservation and recreation interests have been accepted as a

basis for demonstrating injury-in-fact. National Wildlife

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Federation v. Hodel, 839 F.2d 694, 704 (D.C. Cir. 1988).

However, SCI cannot demonstrate either causation or

redressability. SCI’s alleged injury is based entirely on “the

possible substantive outcome” of the FWS’ listing determination

of the three species. But that substantive outcome is not before

this Court. Rather, the settlement agreements deal only with

FWS’ failure to make the determinations. The agreements require

that FWS determine whether or not to list the species within the

next several years, not to reach any particular result.

Guardians Agreement ¶ 2 and at Ex. B; CBD Agreement § B.3.4

Accordingly, SCI’s injury is not fairly traceable to any judgment

in this Court in the present action. By extension, therefore,

SCI’s injury is also unlikely to be redressed by any decision by

this Court in this litigation. See In re ESA Litig., 270 F.R.D.

at 5; see also CBD v. EPA, 274 F.R.D. at 311 (denying aircraft

manufacturers’ motion to intervene in action which sought to

compel EPA to act on their petitions to regulate greenhouse gases

because the Court’s decision would only “require EPA to make the

4
Specifically, under the proposed settlements, FWS
agrees to issue a proposed listing rule or finding that the
listing is not warranted for one distinct population segment
(“DPS”) of the greater sage grouse by the end of fiscal year
2013, and all other DPS by the end of fiscal year 2015.
Guardians Agreement ¶ 2; CBD Agreement § B(3.c., e). For the New
England cottontail, FWS agrees to issue a proposed rule or not-
warranted finding by the end of fiscal year 2015, and for the
lesser prairie chicken, FWS will make the same determination by
the end of fiscal year 2012. CBD Agreement § B(3.e); Guardians
Agreement at Ex. B.

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determination (as to whether greenhouse gases endanger public

health), not to reach any particular result.”).5

SCI argues that its motion to intervene is distinguishable

from TRC’s. Specifically, SCI claims it has standing under the

“relaxed . . . requirements” of the procedural rights standing

doctrine, an argument not raised by TRC. SCI Mem. 11; SCI Reply

8, n.5. For the reasons below, the Court finds SCI does not have

standing under the procedural rights doctrine.

The procedural rights doctrine holds that where a proposed

party’s concrete interests are harmed when an agency fails to

follow a legally required procedure for a decision, the proposed

party faces a lesser burden of showing redressability. In this

5
SCI claims that the settlement agreements do more than
establish deadlines; they remove FWS’ discretion “to determine
that the listings” of the three species at issue “continue to be
warranted but precluded.” SCI Mem. at 12. SCI does not link
this claim to the causation requirement for Article III standing,
and the Court finds that FWS’ commitment to consider the three
species is not “substantially probable” to cause its injury -
i.e., its inability to hunt the species. Florida Audubon Society
v. Bentsen, 94 F.3d 658, 667 (D.C. Cir. 1996) (citations
omitted). For that commitment to result in the harm identified
by SCI, several contingencies would have to occur: the FWS would
have to determine that each species, including the distinct
population segments hunted by SCI members, qualify for listing;
FWS would have to initiate a rulemaking (in which SCI would be
free to participate by way of notice and comment); and that
rulemaking would have to result in a finding that each species
and its distinct population segments are either endangered or so
threatened as to preclude hunting. The Court finds “the
intervening contingency of the endangerment finding prevents the
[recreational] harm asserted by movant[] from being ‘fairly . . .
traceable’” to the settlement agreement. CBD v. EPA, 274 F.R.D.
at 310 (quoting Lujan, 504 U.S. at 560).

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situation, the fact that the agency could reach the same outcome

after following the required procedures is not ordinarily a basis

for denying standing. See Lujan, 504 U.S. at 572 n.7. As the

D.C. Circuit has emphasized, a party “may have standing to

challenge the failure of an agency to abide by a procedural

requirement only if that requirement ‘was designed to protect

some threatened concrete interest’” of that party. Florida

Audubon, 94 F.3d at 667 (quoting Lujan, 504 U.S. at 573, n.8).

Moreover, the procedural rights doctrine “does not – and

cannot - eliminate any of the ‘irreducible’ elements of

standing[.]” Id. Accordingly, the party asserting procedural

standing must demonstrate causation, by showing “not only that

the defendant’s acts omitted some procedural requirement, but

also that it is substantially probable that the procedural breach

will cause the essential injury to the [party’s] own interest.”

Id. at 664-65.

SCI argues that FWS has failed to follow a procedural

requirement. It claims FWS has “modif[ied] its priority ranking

system without engaging the public” by providing notice and the

opportunity to comment. SCI Reply 13. SCI points out that the

settlement agreements require FWS to make determinations on

whether or not to list warranted-but-precluded species over the

next several years, and provides dates certain by which

determinations for each species will be made. SCI claims that

12
these dates certain do not always follow the “listing priorities”

FWS assigns to each candidate species in its annual CNOR. SCI

Reply at 12. For example, SCI points out that under the

settlement “the Jollyville Plateau Salamander, which [FWS] has

given a priority of 8, must be addressed by next year, while the

Kentucky Arrow darter, which [FWS] has designated a ranking of 3

(a higher priority), must be addressed by 2015." Id. at 15

(citing 2010 CNR, 75 Fed. Reg. at 69,224; 69,249). SCI claims

that by entering into the settlement agreement, FWS has modified

its priority ranking system, which it may not do without notice

and comment. SCI Mem. at 13-17. For the reasons that follow,

SCI is incorrect.

The ESA requires FWS to establish a system for determining

the priorities for making listing determinations.

The Secretary shall establish, and publish in the Federal
Register, agency guidelines to insure that the purposes of
[the ESA] are achieved efficiently and effectively. Such
guidelines include, but are not limited to –
...
(3) a ranking system to assist in the identification of
species that should receive priority review . . .

16 U.S.C. § 1533(h). While the statute provides that

establishment of the guidelines themselves shall be subject to

notice and comment, it does not require that FWS must provide

notice and comment before applying the guidelines to any species.

Moreover, the statute requires FWS to establish guidelines to

include “a ranking system to assist in the identification of

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species that should receive priority review.” Id. It does not

prohibit FWS from reviewing species in any order but the order

set forth in the rankings. Indeed, FWS clearly explained it is

not bound by the priority listings when it adopted the guidelines

mandated by section 1533(h) nearly 30 years ago. FWS stated:

“the priority systems presented must be viewed as guides and

should not be looked upon as inflexible frameworks for

determining resource allocations.” Endangered and Threatened

Species Listing and Recovery Priority Guidelines, 48 Fed. Reg.

43,098 (Sept. 21, 1983). “It should be recognized that the

setting of listing priorities is an intermittent, rather than a

continuous, activity, and that information developed on a species

believed to have a high priority may indicate that a lower

priority is justified, but that this situation would not

necessarily preclude its being listed[.]” Id. at 43,099. As the

statute and the guidelines make clear, the priority systems are

one tool, among others, designed to assist FWS in carrying out

its functions under the ESA. The rankings do not create any

requirement - procedural or otherwise - that the agency consider

the species in the order they are ranked. Because SCI has not

shown that any portion of the settlement agreement will cause the

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FWS to violate or ignore a procedural requirement, it cannot

demonstrate procedural standing.6

SCI has failed to satisfy the requirements for Article III

standing, including procedural standing. Thus, it may not

intervene as of right in these consolidated cases. See CBD v.

EPA, 274 F.R.D. at 312 (noting that without standing to

intervene, a plaintiff may not intervene as of right, and further

noting “that much of the standing analysis above also applies to

the question of whether movants have a protectable interest in

the outcome of this action within the meaning of Rule 24(a)(2).”

(citing In re ESA Litig., 270 F.R.D. at 5)).

6
Even assuming FWS violated a required procedure, which
it did not, SCI cannot establish procedural standing because the
procedure SCI identifies was not “designed to protect” its
“threatened concrete interest.” Lujan, 504 U.S. at 573, n.8.
SCI has not shown that the procedure by which the greater sage
grouse, the New England cottontail, and the lesser prairie
chicken remain indefinitely on the candidate list was designed to
protect SCI’s stated interest in hunting the species. In Lujan
the Supreme Court gave examples of procedures designed to protect
a party: the requirement for a hearing prior to a denial of a
license application is designed to protect the applicant, and the
requirement that a federal agency prepare an environmental impact
statement before conducting a major federal action such as
constructing a dam is designed to protect neighbors of the
proposed dam. Id. at 572. SCI points to no indication, in the
ESA or elsewhere, that the FWS’ procedure for issuing warranted-
but-precluded findings and maintaining a list of candidate
species indefinitely is designed to protect SCI members’ interest
in hunting the species. To the contrary, the 2010 CNOR notes
that the FWS maintains a list of candidate species for “a variety
of reasons,” including promotion of public awareness that the
species may be in danger, and information gathering regarding
these species. See 2010 CNOR, 75 Fed. Reg. 69,222 - 223.
Hunting is not among the reasons listed.

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B. Permissive Intervention

In the alternative, SCI moves for permissive intervention

under Rule 24(b). Under Rule 24(b)(2), a prospective intervenor

must demonstrate (1) an independent ground for subject matter

jurisdiction; (2) a timely motion; and (3) a claim or defense

that has a question of law or fact in common with the main

action. Equal Emp’t Opportunity Comm’n v. Nat’l Children’s Ctr.,

146 F.3d 1042, 1046 (D.C. Cir. 1998). If a prospective

intervenor satisfies these criteria, the Court “must consider

whether the intervention will unduly delay or prejudice the

adjudication of the original parties’ rights,” Fed. R. Civ. P.

24(b)(3), and may also consider “whether parties seeking

intervention will significantly contribute to . . . the just and

equitable adjudication of the legal questions presented.”

Aristotle Int’l, Inc. v. NGP Software, Inc., 714 F. Supp. 2d 1,

18 (D.D.C. 2010) (quoting H.L. Hayden Co. v. Siemens Med. Sys.,

Inc., 797 F.2d 85, 89 (2d Cir. 1986)). Because permissive

intervention is granted solely at the discretion of the district

court, the Court may deny permission to intervene even if the

applicant satisfies the necessary criteria. Nat’l Children’s

Center, 146 F.3d at 1048.

Assuming arguendo that SCI’s motion to intervene satisfies

the first three criteria, the Court turns to whether the

intervention will lead to prejudice or delay, on the one hand, or

16
would significantly contribute to the just and equitable

adjudication of the issues, on the other.7 It is on these

grounds that the Court concludes that SCI should not be permitted

to intervene.

First, the Court finds that allowing SCI to intervene could

lead to undue delay. The settlement agreements are currently

pending before the Court. SCI’s stated purpose in seeking to

intervene is, in part, to protect its interests by delaying any

determination on the greater sage grouse, the New England

cottontail, and the lesser prairie-chicken. SCI Mem. at 2, 10,

11. The Court is unwilling to put SCI in a position to further

delay resolution of the case.

Second, the Court finds that allowing SCI to intervene may

prejudice FWS’ ability to comply with the settlement agreements.

The agreements contemplate that FWS will have the resources to

begin work on issuing 90 day and 12 month findings in fiscal year

2011, as well as beginning work on addressing the backlog of

candidate species immediately. Guardians Agreement at 5-6, Ex.

B; CBD Agreement 4-6. The settlements further contemplate that

7
As this Court noted in the prior motion to intervene,
standing is related to the issue of subject matter jurisdiction.
In re ESA Litig., 270 F.R.D. at 6, n.5. Although intervenors of
right must demonstrate standing, it is unclear in this Circuit
whether standing is also required for permissive intervention.
Id., citing In re Vitamins Antitrust Class Actions, 215 F.3d 26,
31-32 (D.C. Cir. 2000). As explained above, SCI has not
demonstrated Article III standing to intervene in this case.

17
FWS will have the resources to complete this work because, inter

alia, Guardians and CBD will significantly limit new petitions

and conclude existing litigation against FWS. Guardians

Agreement at 5, 8-10, 11-12; CBD Agreement 6-8. As long as this

multi-district litigation continues, it consumes resources and

places the ultimate goals of the agreement in jeopardy. In other

words, regardless of the merits of SCI’s position, the mere fact

of its intervention will force the FWS to continue to litigate,

consuming scarce resources which may result in FWS’ inability to

honor its obligations under the settlement agreements. The Court

declines to exercise its discretion to permit intervention under

these circumstances.

On the other hand, denying SCI’s motion to intervene will

not prejudice SCI because “intervening in this essentially

procedural matter is not an appropriate mechanism to protect its

substantive interests.” In re ESA Litig., 270 F.R.D. at 6. SCI

“can best serve its stated interests by participating in the

administrative review process for FWS’ eventual listing

decision[s]. If the FWS ultimately finds” that the greater sage

grouse, the New England cottontail, and/or the lesser prairie

chicken warrant listing, SCI “can then file its own lawsuit to

protect [its] interests directly.” Id. at 6. “While the Court

is aware that it is ‘not enough to deny intervention . . .

because the applicants may vindicate their interests in some

18
later, albeit more burdensome, litigation,’” Id. (quoting Natural

Res. Def. Council v. Costle, 561 F.2d 904, 910 (D.C. Cir. 1977))

the consolidated cases before this Court offer SCI “no

opportunity to effectively vindicate its interests.” Id.

Finally, the Court concludes that SCI’s intervention in the

case will not “significantly contribute to . . . the just and

equitable adjudication of the legal question presented.”

Aristotle, 714 F. Supp. 2d at 18 (quoting H.L. Hayden Co., 797

F.2d at 89). Judge Kennedy of this Court considered a

substantively identical issue earlier this year in CBD v. EPA,

274 F.R.D. 305. In that case, CBD brought action against the

Environmental Protection Agency seeking to compel it to respond

to petitions urging the EPA to regulate greenhouse gas emissions.

A collection of movants representing the aircraft industry sought

to intervene in the litigation, seeking to delay or prevent EPA

from acting on the petitions. Denying the motion for permissive

intervention, Judge Kennedy found:

Movants argue persuasively that they have substantial
expertise . . . regarding . . . aircraft and the engines
thereof. . . . [H]owever, aircraft and their engines are not
at issue in this case. Rather, the Court has been asked to
determine whether EPA has an enforceable obligation to make
the findings sought by plaintiffs and, if so, whether it has
breached that obligation. With regard to these questions,
movants . . . fail to demonstrate an ability to contribute
to the full development of the factual and legal issues
presented.

Id. at 313 (citations omitted)(emphasis in original). The same

is true in this case. The Court has no doubt that SCI and its

19
members have both expertise and experience regarding the greater

sage grouse, the New England cottontail, and the lesser prairie-

chicken, particularly as pertains to hunting those species.

However, the substantive question whether or not these species

should be listed as threatened or endangered is not at issue in

these consolidated cases or in the settlement agreements. The

only question before this Court is whether the FWS may agree to

make those determinations in the timetables proposed. The Court

concludes that SCI and its members’ “substantial experience and

[] expertise” on the species “have no bearing on the legality of

the timetable process here in dispute.” Envtl Def. Fund v.

Thomas, Case. No. 85-1747, 1985 WL 6050, at *6-7 (D.D.C. Oct. 29,

1985) (denying permissive intervention where industry groups

sought to intervene in a suit over the timing in which EPA would

promulgate regulations).

Because the Court concludes that intervention has the

potential to unduly delay and prejudice the original parties, and

because the Court further concludes that no benefit will flow

from permitting SCI to intervene, the Court DENIES SCI’s request

for permissive intervention.

II. CONCLUSION

For the reasons states herein, movant’s motion to intervene

is DENIED. Accordingly, SCI’s motion for leave to intervene

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without filing responsive pleadings, Doc. 39-7, is DENIED AS

MOOT. An appropriate Order accompanies this Memorandum Opinion.

SO ORDERED.

Signed by: Emmet G. Sullivan
United States District Court Judge
September 9, 2011

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