Red Lake Band of Chippewa Indians

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

RED LAKE BAND OF CHIPPEWA
INDIANS, et al.,
Plaintiffs,
v.
UNITED STATES ARMY CORPS OF
ENGINEERS, Civil Action No. 20-3817 (CKK)
Defendant,

ENBRIDGE ENERGY, LIMITED
PARTNERSHIP,

Defendant-Intervenor.

MEMORANDUM OPINION
(January 9, 2021)

Plaintiffs Red Lake Band of Chippewa Indians, White Earth Band of Ojibwe, Honor the

Earth, and the Sierra Club (“Plaintiffs”) bring this action against Defendant United States Army

Corps of Engineers (“Defendant”), alleging violations of the National Environmental Policy Act

(“NEPA”), the Clean Water Act (“CWA”), the Rivers and Harbors Act (“RHA”), and

Defendant’s permitting regulations. See Compl. ¶¶ 183-217, ECF No. 1. Specifically, Plaintiffs

challenge Defendant’s issuance of a permit to Enbridge Energy, Limited Partnership

(“Enbridge”), authorizing Enbridge to discharge dredged and fill material into waters of the

United States under Section 404 of the CWA and to cross waters protected by Section 10 of the

RHA (the “Permit”) in its construction of a replacement for the Line 3 oil pipeline, which

transports oil from Canada to Wisconsin, traversing North Dakota and Minnesota. See id. ¶¶ 3,

4, 7. Plaintiffs seek declaratory and injunctive relief, including that the Permit issued to

Enbridge be vacated and that pipeline construction be enjoined. On the same day Plaintiffs filed
their Complaint, they also filed a [2] Motion for Preliminary Injunction, asking the Court to

preliminarily enjoin the Permit issued to Enbridge until Defendant “completes the legally

required review of the pipelines.” Pls.’ Mot. for Prelim. Inj. at 1.

Presently before the Court is Enbridge’s [19] Motion to Intervene as a Defendant.

Enbridge seeks to intervene as of right as a defendant in accordance with Federal Rule of Civil

Procedure 24(a), or in the alternative, to permissively intervene in accordance with Rule 24(b).

Mot. to Intervene at 1. Neither Plaintiffs nor Defendant oppose Enbridge’s motion. See ECF

Nos. 20, 22. Upon consideration of Enbridge’s motion, the relevant legal authorities, and the

record as a whole, the Court finds that Enbridge is entitled to intervene as a matter of right under

Federal Rule of Civil Procedure 24(a). Accordingly, the Court shall GRANT Enbridge’s Motion

to Intervene.

I. LEGAL STANDARD

Federal Rule of Civil Procedure 24(a) governs intervention as a matter of right. That

provision requires the Court “[o]n timely motion” to “permit anyone to intervene who . . . 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.” Fed. R.

Civ. P. 24(a)(2). Consistent with this rule, the D.C. Circuit requires putative intervenors to

demonstrate “(1) the timeliness of the motion; (2) whether the applicant claims an interest

relating to the property or transaction which is the subject of the action; (3) whether the applicant

is so situated that the 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 existing parties.” Fund for Animals, Inc. v. Norton, 322 F.3d 728, 731 (D.C. Cir.

2003) (internal citations and quotation marks omitted).
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 The D.C. Circuit also requires parties seeking to intervene under Rule 24(a)—including

putative defendant-intervenors—to demonstrate that they have standing under Article III of the

Constitution. See Crossroads Grassroots Policy Strategies v. Fed. Election Comm’n, 788 F.3d

312, 316 (D.C. Cir. 2015); Fund for Animals, 322 F.3d at 731-32. “The standing inquiry for an

intervening-defendant is the same as for a plaintiff: the intervenor must show injury in fact,

causation, and redressability.” Crossroads, 788 F.3d at 316 (citing Deutsche Bank Nat’l Trust v.

F.D.I.C., 717 F.3d 189, 193 (D.C. Cir. 2013)). The injury in fact must be “concrete and

particularized,” and “actual or imminent, not conjectural or hypothetical.” Id. at 316-27 (quoting

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)).

II. DISCUSSION

Enbridge seek to intervene as a matter of right pursuant to Rule 24(a), or alternatively,

permissively pursuant to Rule 24(b). As discussed below, the Court finds that Enbridge has

standing under Article III and has satisfied the requirements of intervention as a matter of right

under Rule 24(a).

A. Standing

Before addressing each Rule 24(a) factor, the Court must consider Enbridge’s standing. 1

Crossroads, 788 F.3d at 316 (“[W]here a party tries to intervene as another defendant, we have

1
In a footnote, Enbridge contends that, as a prospective defendant-intervenor, it is not required
to establish standing pursuant to the Supreme Court’s decision in Virginia House of Delegates v.
Bethune-Hill, 139 S. Ct. 1945 (2019). See Mot. to Intervene at 13 n.3. Specifically, Enbridge
points to the Supreme Court’s observation that the appellant’s role in that case as an
intervenor-defendant before the trial court did not entail “invoking a [federal] court’s
jurisdiction.” Id. (quoting Bethune-Hill, 139 S. Ct. at 1951). Enbridge does not, however, cite
any caselaw within this judicial circuit applying that language to obviate the requirement
articulated by the D.C. Circuit that a prospective intervenor-defendant must establish Article III
standing. See Crossroads, 788 F.3d at 316; Deutsche Bank, 717 F.3d at 193. And other courts in
this jurisdiction have required prospective intervenor-defendants to demonstrate standing since
the Supreme Court’s Bethune-Hill decision. See, e.g., MGM Global Resorts Dev., LLC v. U.S.

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required it to demonstrate Article III standing[.]”); Fund for Animals, 322 F.3d at 732-33

(considering standing of prospective intervenor-defendant).

“Our cases have generally found a sufficient injury in fact where a party benefits from

agency action, the action is then challenged in court, and an unfavorable decision would remove

the party’s benefit.” Crossroads, 788 F.3d at 317. For example, in Friends of Animals v. Ashe,

the court concluded that private organizations seeking to intervene as defendants demonstrated

an injury in fact to support standing (and intervention as of right) when plaintiffs sued the U.S.

Fish and Wildlife Service challenging its issuance of permits allowing certain hunting imports to

those organizations. 2015 WL 13672461, at *1, 3 (D.D.C. June 12, 2015). In that case, the court

concluded that the organizations had standing because they would be prevented from importing

the items allowed by the permit if the plaintiffs prevailed. Id. at *3.

Here, Enbridge benefits from Defendant’s issuance of the Permit, as it provides necessary

authorizations for Enbridge to undertake its proposed Line 3 replacement. See Mot. to Intervene

at 7; Compl. ¶ 4. Enbridge contends that a decision enjoining the Permit and construction on

Line 3 “threatens Enbridge’s investment” in its replacement project. Mot. to Intervene at 13 n.3;

see also Decl. of Barry Simonson ¶ 40, ECF No. 19-3 (“Simonson Decl.”) 2 (“Enbridge would

potentially face a loss of the investment already incurred as well as a loss of future revenue[.]”).

Enbridge further argues that a decision in favor of Plaintiffs would impair Enbridge’s “ability to

proceed with the Project,” which would hamper “Enbridge’s ability to meet the long-term

Dep’t of Interior, 2020 WL 5545496, at *3-4 (D.D.C. Sept. 16, 2020). Accordingly, the Court
shall assess Enbridge’s standing.
2
In evaluating a motion to intervene, “[c]ourts are to take all well-pleaded, nonconclusory
allegations in the motion to intervene, the proposed complaint or answer in intervention, and
declarations supporting the motion as true absent sham, frivolity or other objections.” Wildearth
Guardians v. Salazar, 272 F.R.D. 4, 9 (D.D.C. 2010) (quoting Sw. Ctr. for Biological Diversity
v. Berg, 268 F.3d 810, 820 (9th Cir. 2001)).

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demand of its customers[.]” Mot. to Intervene at 12. The Court finds that these claimed injuries

are sufficient to support standing. See, e.g., Wildearth Guardians, 272 F.R.D. at 19 (requiring

prospective intervenor to “expend additional time and resources, with the ultimate outcome

uncertain” constituted injury-in-fact supporting standing); id. (“[T]here is little doubt that

resolution of this action in Plaintiff’s favor would affect [intervenor’s] financial . . . stake in the

development of coal mining operations[.]”). In addition, the claimed injuries are “fairly

traceable to the judicial intervention” (setting aside the Permit) and a decision in Enbridge’s

favor would plainly prevent it from incurring the claimed injuries. See Cty. of San Miguel,

Colorado v. MacDonald, 244 F.R.D. 36, 45 (D.D.C. 2007).

B. Intervention as of Right

Turning to the four-factor analysis described supra Part I, the Court concludes that

Enbridge has satisfied each element and is entitled to intervene as a matter of right pursuant to

Rule 24(a).

First, Enbridge’s application to intervene is timely. Enbridge filed its motion to

intervene twelve days after Plaintiffs filed their Complaint and Motion for Preliminary

Injunction, and one day after Defendant was served. See, e.g., Mova Pharma. Corp. v. Shalala,

140 F.3d 1060, 1076 (D.C. Cir. 1998) (finding timely an intervention motion filed “a few weeks

after [plaintiff] initiated the action and before the district court ruled on the preliminary

injunction”). Enbridge indicates that it seeks to participate in the briefing on Plaintiffs’ Motion

for Preliminary Injunction, and will do so according to the schedule set by the Court. See Mot. to

Intervene at 17. The Court finds that Enbridge’s intervention at this time will not delay the

action or otherwise prejudice the parties, and will enable Enbridge to participate in the briefing

on the pending preliminary injunction motion.

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 Second, the Court concludes that Enbridge has demonstrated an “interest relating to the

property or transaction that is the subject of the action.” Fed. R. Civ. P. 24(a)(2). The Court’s

conclusion that a putative intervenor has constitutional standing is “alone sufficient to

establish . . . [its] interest in the property or transaction which is the subject of the action.” Fund

for Animals, 322 F.3d at 735 (internal citations and quotation marks omitted); see also

Crossroads, 788 F.3d at 320 (“[S]ince [intervenor] has constitutional standing, it a fortiori has an

interest relating to the property or transaction which is the subject of the action.”) (internal

citation and quotation marks omitted); Mova Pharma., 140 F.3d at 1076 (“[Intervenor] need not

show anything more than that it has standing to sue in order to demonstrate the existence of a

legally protected interest for the purpose of Rule 24(a).”). Enbridge has a clear interest in the

Permit that is the subject of this action, as Enbridge holds the Permit at issue in this lawsuit. See,

e.g., Friends of Animals, 2015 WL 13672461, at *3 (concluding that prospective-intervenor

permit holders “have an interest in the permits at issue”); see also Sierra Club v. E.P.A., 995

F.2d 1478 (9th Cir. 1993) (concluding that holder of CWA permit had interest in action against

EPA challenging permit terms), overruled in part on other grounds by Wilderness Soc’y v. U.S.

Forest Serv., 630 F.3d 1173 (9th Cir. 2011).

Third, the Court finds that Enbridge is “so situated that the disposition of the action may

as a practical matter impede or impair [its] ability to protect its interest.” Fund for Animals, 322

F.3d at 735 (quoting Fed. R. Civ. P. 24(a)(2)). In evaluating this prong of Rule 24(a), the Court

considers the “practical consequences,” of denying intervention, which may include economic

consequences. Id. at 735 (noting intervenor’s “loss of revenues during any interim period”); cf.

Mova Pharma. Corp., 140 F.3d at 1076 (considering prospective intervenor’s “danger in losing

market share . . . if district court denied the injunction”); Cty. of San Miguel, 244 F.R.D. at 47

6
(noting that “the imminent threat of lost earnings” if the court granted plaintiffs’ relief “would

impair the intervenor-applicants’ members economic interests”). Here, Plaintiffs’ requested

relief, if granted, would as a practical matter impede Enbridge’s ability to proceed with its Line 3

replacement project, requiring Enbridge to halt construction and incur additional costs associated

with delay. See Mot. to Intervene at 12-13; Simonson Decl. ¶¶ 37-41. Enbridge has “an interest

in the permit[ ] at issue,” and a “decision in [its] absence would impair [its] ability to protect that

interest. Friends of Animals, 2015 WL 13672461, at *3.

Fourth, Enbridge has sufficiently demonstrated that no existing party to the action will

adequately represent its interests. The D.C. Circuit has described this last requirement as “not

onerous,” Fund for Animals, 322 F.3d at 735 (internal citations and quotation marks omitted),

and has “often concluded that governmental entities do not adequately represent the interests of

aspiring intervenors.” Crossroads, 788 F.3d at 314 (quoting Fund for Animals, 322 F.3d at 736).

The Court agrees that Enbridge has interests in this action distinct from Defendant, and that

Defendant does not adequately represent Enbridge’s interests. Although Enbridge and

Defendant may share an interest in upholding the Permit, Enbridge correctly points out that

Defendant “does not have any particular stake in preserving Enbridge’s approvals or protecting

Enbridge’s interests in the Permit.” Mot. to Intervene at 14-15 (emphasis added). Rather,

Defendant “will be focused on defending its permitting policies and procedures.” Id. at 14; see

also Forest Cnty. Potawatomi Cmty. v. United States, 317 F.R.D. 6, 15 (D.D.C. 2016) (noting

that the federal government “represents the public interest of its citizens” and “would be shirking

its duty were it to advance [a] narrower interest at the expense of its representation of the general

public interest”) (internal citations and quotation marks omitted). The Court finds that

Enbridge’s rationale satisfies the “not onerous” burden of Rule 24(a)’s final prong.

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 Because Enbridge has standing and has satisfied Rule 24(a)’s requirements, the Court

concludes that it may intervene as a defendant as a matter of right. 3

C. Conditions on Intervention

“Even where the Court concludes that intervention as a matter of right is appropriate, its

inquiry is not necessarily at an end; district courts may impose appropriate conditions or

restrictions upon the intervenor’s participation in the action.” Forest Cty., 317 F.R.D. at 15

(citing Fund for Animals, 322 F.3d at 737 n.11) (additional citations omitted). “[A]ny conditions

imposed should be designed to ensure the fair, efficacious, and prompt resolution of the

litigation.” Id.; see, e.g., Brady Campaign to Prevent Gun Violence v. Salazar, 612. F. Supp. 2d

1, 11 n.8 (D.D.C. 2009) (granting intervention of right but prohibiting intervenors from raising

new claims or collateral issues); Cty. of San Miguel, 244 F.R.D. at 48 n.17 (limiting intervention

of right to claims within the scope of the complaint). In order to ensure the fair and efficacious

resolution of this action, the Court shall require Enbridge, as an intervening party to comply with

the following conditions:

• Enbridge shall confine its arguments to the existing claims in the action and shall not
inject new claims or stray into collateral issues;

• Enbridge shall adhere to the briefing schedule on Plaintiffs’ Motion for Preliminary
Injunction, set forth in the Court’s January 6, 2021 Minute Order; and

• Enbridge shall comply with each of the directives set forth in the [15] Order
Establishing Procedures for Cases Assigned to Judge Colleen Kollar-Kotelly and [21]
Scheduling and Procedures Order.

3
Because the Court concludes that Enbridge may intervene as a matter of right, the Court finds it
unnecessary to determine whether it also entitled to intervene by permissive intervention
pursuant to Rule 24(b). See Am. Horse Prot. Assoc., Inc. v. Veneman, 200 F.R.D. 153, 156
(D.D.C. 2001) (concluding that movant was entitled to intervene as of right and declining to
reach question of permissive intervention).
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The Court finds that these conditions “strike the appropriate balance between ensuring the

expedient resolution of this action while preserving a space for the intervening part[y] to

articulate [its] respective positions and interests.” Forest Cty., 317 F.R.D. at 16.

III. CONCLUSION

For the foregoing reasons, the Court shall GRANT Enbridge’s Motion to Intervene. As

an intervening party, Enbridge shall comply with the conditions set forth in this Memorandum

Opinion. An appropriate Order accompanies this Memorandum Opinion.

/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge

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