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:
Center for Biological
Diversity v. Salazar, No. 10-
CV-00230 (EGS)
MEMORANDUM OPINION
Pending before the Court is a motion to intervene as of
right or, in the alternative, for permissive intervention filed
by Tejon Ranch Company, Tejon Ranchcorp, and Tejon Mountain
Village, LLC (collectively “TRC”). TRC seeks to intervene in
only one of the consolidated cases in this matter: Center for
Biological Diversity v. Salazar, No. 10-230, which arises in part
from a petition to list the Tehachapi slender salamander under
the Endangered Species Act (“ESA”). TRC’s motion is opposed by
Plaintiff Center for Biological Diversity (“CBD”) and by
Plaintiff Wildearth Guardians (“Wildearth”).1 The federal
defendants take no position on TRC’s motion. Upon consideration
of TRC’s motion, the responses and reply thereto, the relevant
1
Plaintiff Wildearth is not a party to Case No. 10-230 but
filed a response to TRC’s motion to intervene, as authorized by
this Court’s Minute Order dated August 6, 2010.
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law, and for the reasons stated herein, TRC’s motion to intervene
is DENIED.
I. 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
that have been designated as threatened or endangered.2 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
2
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 United States Fish and
Wildlife Service (“FWS”), in the case of Interior, and to the
National Marine Fisheries Service, in the case of Commerce.
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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 other listing
priorities; or (3) warranted, in which case the FWS must publish
a proposed rule to list the species in the Federal Register. Id.
§ 1533(b)(3)(B). The ESA permits no exceptions to this 12-month
mandatory deadline.
B. Factual and Procedural Background
On February 28, 2006, the FWS received a citizen petition to
list the Tehachapi slender salamander as an endangered or
threatened species. See 90-Day Finding on a Petition to List the
Tehachapi Slender Salamander (Batrachoseps stebbins) as
Threatened or Endangered, 74 Fed. Reg. 18,336 (Apr. 22, 2009)
(“90-Day Finding”). The Tehachapi slender salamander is a small,
lungless amphibian believed to exist in only two populations in
central California – one in Caliente Canyon in the southern
Sierras, and the other in the Tehachapi Mountains. TRC
Memorandum in Support of Motion to Intervene at 4, Docket No. 9
(“TRC Mem.”). A portion of the Tehachapi population is found on
Tejon Ranch, which is owned by Movant-Intervenor TRC. TRC Mem.
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at 4. Tejon Ranch is a 270,000-acre working ranch located 60
miles north of Los Angeles and 30 miles south of Bakersfield,
California. Declaration of Roberta Marshall in Support of Motion
to Intervene ¶ 2, Docket No. 9-1 (“Marshall Decl.”). It is the
largest contiguous piece of private property in California and
supports ranching and farming operations, oil production, mining,
recreational activities, and real estate development. Marshall
Decl. ¶ 2. In 2008, Tejon Ranchcorp entered into a conservation
agreement that will result in permanent conservation of up to 90%
of the entire property. Marshall Decl. ¶ 7. There are, however,
future development plans for the property that include a mountain
resort community called Tejon Mountain Village (“TMV”), which
will consist of homes, a destination resort, hiking trails, open
space, and other amenities. Marshall Decl. ¶ 2. The petition to
list the Tehachapi slender salamander asserts, among other
things, that “development on the Tejon Ranch property poses
serious threats to the species.” Marshall Decl. ¶ 9.
Over the past several years, TRC has been working with the
FWS on a Multiple Species Habitat Conservation Plan (“MSHCP”) for
27 threatened, endangered, and sensitive species that occupy
habitat on Tejon Ranch, including the Tehachapi slender
salamander. Marshall Decl. ¶¶ 4-6. Once this plan is approved,
TRC will be able to pursue normal business activities, including
future development, in exchange for adopting voluntary land use
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restrictions and management prescriptions. Marshall Decl. ¶ 3.
As proposed, this MSHCP will permanently protect 3,507 of the
3,797 acres of suitable habitat for the salamander, along with
other conservation measures. Marshall Decl. ¶ 6. The MSHCP was
released for public comment in 2009 but has not yet been approved
by the FWS. Marshall Decl. ¶ 4; TRC Mem. at 7.
On April 22, 2009, the FWS issued its 90-day finding on the
Tehachapi slender salamander, concluding that “the petition
presents substantial scientific or commercial information
indicating that listing . . . may be warranted.” 90-Day Finding,
74 Fed. Reg. at 18,341. The FWS specifically found that the
petition presented “credible and substantial” evidence that the
species may be threatened by road construction and maintenance,
residential and commercial development, livestock grazing, and
mining. Id. at 18,339. Subsequently, on February 17, 2010,
Plaintiff CBD filed a complaint in the United States District
Court for the Eastern District of California challenging the
FWS’s failure to act on the Tehachapi slender salamander and
listing petitions for six additional species. Ctr. for Biological
Diversity v. Salazar, No. 10-401 (E.D. Cal. filed Feb. 17, 2010).
TRC filed a motion seeking leave to intervene in that case on
April 2, 2010. TRC Mem. at 5.
Before TRC’s motion could be resolved, CBD voluntarily
dismissed the case and, on April 26, 2010, amended its complaint
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in a related action pending before this Court to add claims
regarding the Tehachapi slender salamander. First Amended
Complaint, Ctr. for Biological Diversity v. Salazar, No. 10-230,
Docket No. 8 (“First Am. Compl.”). Specifically, Plaintiff CBD
claims that the FWS failed to meet a statutory 12-month deadline
to determine whether or not listing of this species is warranted.
First Am. Compl. ¶ 2. Plaintiff requests relief in the form of
(1) an order declaring that the FWS failed to comply with its
statutorily-mandated deadline and (2) an order requiring the
Secretary to make the required finding by a date certain. First
Am. Compl. ¶ 2.
Several related cases brought by Plaintiff CBD and Plaintiff
Wildearth in other jurisdictions were subsequently transferred to
this Court and consolidated for pre-trial proceedings by order of
the United States Judicial Panel on Multidistrict Litigation.
Conditional Transfer Order, In re: Endangered Species Act Section
4 Deadline Litigation, No. 10-mc-377, Docket No. 1. TRC sought
to intervene in this matter on August 5, 2010. This motion is
now ripe for determination by the Court.
II. ANALYSIS
TRC moves to intervene in this case as a matter of right
pursuant to Federal Rule of Civil Procedure 24(a) or, in the
alternative, by permission of the Court pursuant to Federal Rule
of Civil Procedure 24(b). Plaintiffs oppose TRC’s motion in both
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respects. This Opinion addresses each of these requests in turn.
A. Intervention as of Right
Intervention as a matter of right is governed by Rule 24(a)
of the Federal Rules of Civil Procedure, which states in relevant
part:
On timely motion, the court must permit anyone to
intervene who: (1) is given an unconditional right to
intervene by a federal statute; or (2) 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.
In the D.C. Circuit an applicant must meet four criteria to
be granted intervention as of right: (1) timeliness; (2) a
protectable interest relating to the property or transaction that
is the subject of the action; (3) impairment of the ability to
protect that interest; and (4) inadequate representation of that
interest by other parties. Fund for Animals v. Norton, 322 F.3d
728, 731 (D.C. Cir. 2003). In addition to satisfying these
criteria, a party seeking to intervene as of right must
demonstrate that it has standing under Article III of the
Constitution. Id. at 732. Because a prospective intervenor’s
Article III standing presents a question going to this Court’s
jurisdiction, see Sierra Club v. EPA, 292 F.3d 895, 898 (D.C.
Cir. 2002), the Court must address standing before considering
the four-part test for evaluating intervention as of right. Fund
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for Animals, 322 F.3d at 732.
All litigants must demonstrate that they are “entitled to
have the court decide the merits of the dispute” in order to
properly invoke the jurisdiction of a federal court. Warth v.
Sedlin, 422 U.S. 490, 498 (1975). At a minimum, an intervenor,
like any party, must show (1) an injury-in-fact that is (a)
concrete and particularized and (b) actual and imminent, (2)
causation, and (3) redressability. Lujan v. Defenders of
Wildlife, 504 U.S. 555, 561 (1992).
In attempting to demonstrate standing, TRC identifies two
potential injuries. First, because Tehachapi slender salamanders
are found on TRC property, TRC claims that the outcome of the FWS
listing determination for this species may precipitate
restrictions on the use of its land and business operations. TRC
Mem. at 14, 16. As TRC notes, it is axiomatic that property
owners have an interest in a suit that affects their property.
Foster v. Gueory, 655 F.2d 1319, 1324 (D.C. Cir. 1981). Second,
TRC asserts that it could suffer economic losses and additional
delays in developing its property if the FWS is forced to render
its listing decision on the Tehachapi slender salamander before
TRC’s proposed conservation plan has been finalized and approved.
TRC Reply to Plaintiffs’ Opposition to Motion to Intervene at 3,
Docket No. 14 (“TRC Reply”). TRC asserts that the MSHCP is
“intertwined” with the listing decision for the Tehachapi slender
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salamander, such that once it is approved by FWS it could obviate
the need for listing the species altogether. TRC Reply at 3. On
the other hand, if the listing determination is made while the
MSHCP is still pending, TRC would then be forced to spend
additional time and resources revising the conservation plan to
address the newly-listed species. TRC Reply at 3. The Court
will explore these arguments in turn.
With regard to the purported injury to TRC’s property
interests, the Court finds that TRC has 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’s listing determination for the
Tehachapi slender salamander, which is not before this Court.
The case before this Court deals only with the FWS’s 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.
While TRC’s claims of injury from the timing of the FWS’s
listing decision are more relevant to the actual case before this
Court, they likewise fail to establish standing. TRC’s purported
interest is in ensuring that its MSHCP will be approved and
properly considered prior to listing the Tehachapi slender
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salamander. It is unclear how intervening here would protect
that interest. TRC does not allege and has not shown that its
proposed habitat conservation plan will be approved or denied as
a result of the instant lawsuit. The question before this Court
- whether the FWS fulfilled a procedural obligation to complete a
review of the status of the Tehachapi slender salamander within
the time period provided by law - has no apparent impact on
whether TRC’s proposed plan will be approved or properly
considered. Because TRC has failed to show both causation and
redressability with respect to this injury as well, the Court
finds that TRC does not have standing to intervene in this case.
For the same reasons, the Court finds that any interest TRC
may have is not legally protectable by a judgment of the Court in
this case. United States v. Am. Tel. and Tel. Co., 642 F.2d 1285,
1291-92 (D.C. Cir. 1980) (defining a legally protectable interest
as one which is “of such a direct and immediate character that
the intervenor will either gain or lose by the direct legal
operation and effect of the judgment”).3
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Nor is the Court persuaded by the primary case relied upon by
TRC in support of its motion. In County of San Miguel v.
Macdonald, 244 F.R.D. 36 (D.D.C. 2007) (Walton, J.), the court
granted intervention as of right over plaintiffs’ objections that
“lawsuits such as this one do not result in an order compelling
the defendants to actually list the subject species.” Id. at 47.
In granting the intervention request, the court found that “the
Gunnison sage grouse is the subject of the sought-after
regulation and the intervenor-applicants’ members benefit from
the FWS’s current ‘not warranted’ determination. If the Court
grants the relief that the plaintiffs seek, the threat of greater
regulation of the lands the intervenor-applicants use and rely
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Because the Court finds that TRC does not have standing to
intervene and has failed to state a legally protectable interest
in this case, the Court DENIES TRC’s motion to intervene as of
right.4
B. Permissive Intervention
In the alternative, TRC moves for permissive intervention
under Federal Rule of Civil Procedure 24(b). Rule 24(b)(1)(B)
provides for permissive intervention on a timely motion, where
the applicant “has a claim or defense that shares with the main
action a common question of law or fact.” To litigate a claim
on the merits under Rule 24(b)(2), the prospective intervenor
must demonstrate (1) an independent grounds 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.,
upon for their livelihoods and business operations would be
imminent and would result in concrete injury to their members.”
Id. at 45. While the court’s reasoning is persuasive, it is also
distinguishable from this case because the plaintiffs in County
of San Miguel requested substantive relief in the form of an
order requiring the FWS to issue an emergency listing of the
Gunnison sage grouse. Id. at 47. TRC does not face the same
direct and immediate threat from the procedural relief sought by
Plaintiff CBD in this case. See Ctr. for Biological Diversity v.
U.S. Fish and Wildlife Serv., No. 04-4324, 2005 U.S. Dist. LEXIS
42275 at *15 (N.D. Cal. May 30, 2005) (denying motion to
intervene as of right because “[a]pplicant-intervenors’ economic
interests are not related to federal compliance or noncompliance”
with non-discretionary requirements imposed by the ESA).
4
Having found that TRC has no legally protectable interest
sufficient to entitle it to intervene as of right, the Court need
not consider the remaining elements of the four-part test.
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146 F.3d 1042, 1046 (D.C. Cir. 1998). If a prospective
intervenor satisfies these criteria, courts “must consider
whether the intervention will unduly delay or prejudice the
adjudication of the original parties’ rights.” Fed. R. Civ. P.
24(b)(1)(B). 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 Ctr., 146 F.3d at 1048.
As a threshold matter the Court finds that the intervention
motion was timely filed, and that TRC has demonstrated sufficient
grounds for the Court’s subject matter jurisdiction and common
questions of law and fact with the main action.5 TRC Mem. at 22.
The issue in this case, therefore, is whether intervention will
lead to prejudice or delay.
After careful consideration of the parties’ positions, the
Court finds that allowing TRC to intervene could lead to undue
delay and would potentially prejudice the adjudication of the
original parties’ rights. This matter is currently stayed while
the parties pursue settlement negotiations. See Minute Order
dated August 5, 2010. Recognizing that TRC’s stated purpose in
5
Related to the issue of subject matter jurisdiction is the
issue of standing. Although intervenors of right are obligated
to demonstrate standing, it is unclear in this Circuit whether
standing is also required for permissive intervention. See In re
Vitamin Antitrust Class Actions, 215 F.3d 26, 31-32 (D.C. Cir.
2000). As discussed above, TRC has not demonstrated Article III
standing to intervene in this case.
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seeking to intervene is, in part, to protect its interests by
delaying a 12-month finding on the Tehachapi slender salamander
(TRC Mem. at 19; TRC Reply at 16), the Court is unwilling to put
TRC in a position to draw out ongoing settlement negotiations and
to further delay the resolution of this case.
The Court also finds that denying TRC’s motion to intervene
will not prejudice TRC because intervening in this essentially
procedural matter is not an appropriate mechanism for TRC to
protect its substantive interests. TRC can best serve its stated
interests by participating in the administrative review process
for the FWS’s eventual listing decision. If the FWS ultimately
finds that the Tehachapi slender salamander warrants listing, TRC
can then file its own lawsuit to protect those interests
directly. While the Court is aware that it is “not enough to
deny intervention . . . because the applicants may vindicate
their interests in some later, albeit more burdensome,
litigation,” Natural Res. Def. Council v. Costle, 561 F.2d 904,
910 (D.C. Cir. 1977), the case before the Court offers TRC no
opportunity to effectively vindicate its interests.
Therefore, in order to avoid the potential for undue delay
and prejudice to the original parties, the Court DENIES TRC’s
request for permissive intervention.
III. CONCLUSION
For the reasons stated herein, the Movant-Intervenors’
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Motion to Intervene is DENIED. An appropriate Order accompanies
this Memorandum Opinion.
SO ORDERED.
Signed by: Emmet G. Sullivan
United States District Court Judge
August 27, 2010
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