NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 5 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WESTERN WATERSHEDS PROJECT; No. 20-35693
CENTER FOR BIOLOGICAL
DIVERSITY, D.C. No. 1:18-cv-00187-REB
Plaintiffs-Appellees,
MEMORANDUM*
v.
DEB HAALAND, Secretary of Interior;
BUREAU OF LAND MANAGEMENT, an
agency of the United States,
Defendants,
STATE OF WYOMING; WESTERN
ENERGY ALLIANCE; CHESAPEAKE
EXPLORATION, L.L.C.,
Intervenor-Defendants,
v.
ANSCHUTZ EXPLORATION
CORPORATION, Proposed Defendant-
Intervenor,
Movant-Appellant.
WESTERN WATERSHEDS PROJECT; No. 20-35781
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
CENTER FOR BIOLOGICAL
DIVERSITY, D.C. No. 1:18-cv-00187-REB
Plaintiffs-Appellees,
v.
DEB HAALAND, Secretary of Interior;
BUREAU OF LAND MANAGEMENT, an
agency of the United States,
Defendants,
STATE OF WYOMING; WESTERN
ENERGY ALLIANCE,
Intervenor-Defendants,
v.
ANSCHUTZ EXPLORATION
CORPORATION,
Movant-Appellant.
Appeal from the United States District Court
for the District of Idaho
Ronald E. Bush, Magistrate Judge, Presiding
Argued and Submitted June 9, 2021
Seattle, Washington
Before: GOULD, CLIFTON, and MILLER, Circuit Judges.
Movant-Appellant Anschutz Exploration Corporation (“AEC”) appeals the
District Court’s denial of its motion to intervene in this case. In two separate
orders, the District Court (i) denied AEC’s request to intervene for purposes of
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appealing the court’s summary judgment decision in the first phase of this case,
and (ii) denied AEC’s request to participate in subsequent phases of the litigation.
We have jurisdiction under 28 U.S.C. § 1291, and we reverse.
We assume familiarity with the factual and procedural history of this case,
which we describe in a separate opinion issued in a related case, Western
Watersheds Project v. Haaland, No. 20-35780, __ F.4th __ (9th Cir. __, 2022).
We review a denial of intervention de novo, and we review the timeliness
element for abuse of discretion. Smith v. L.A. Unified Sch. Dist., 830 F.3d 843,
853 (9th Cir. 2016).
Under Rule 24(a), a nonparty is entitled to intervention as of right when it
“(i) timely moves to intervene; (ii) has a significantly protectable interest related to
the subject of the action; (iii) may have that interest impaired by the disposition of
the action; and (iv) will not be adequately represented by existing parties.”
Oakland Bulk & Oversized Terminal, LLC v. City of Oakland, 960 F.3d 603, 620
(9th Cir. 2020). Although AEC has satisfied the second and third elements, the
District Court concluded that AEC’s motion was untimely and that its interests
were adequately represented by the Western Energy Alliance (“WEA”), a trade
association that intervened to represent the interests of member companies in the
oil and gas industry, including AEC.
To determine whether a motion for intervention as of right is timely, we
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consider the totality of circumstances facing the would-be intervenor, with a focus
on three primary factors: “(1) the stage of the proceeding at which an applicant
seeks to intervene; (2) the prejudice to other parties; and (3) the reason for and
length of the delay.” Smith, 830 F.3d at 854. AEC moved to intervene within the
60-day window to appeal the District Court’s summary judgment decision in phase
one, and sought to enter the litigation as the case was “entering a new stage.” Both
factors favor intervention. See W. Watersheds, slip op. at 14–18. The sole
prejudice identified by the District Court, the possibility that Plaintiffs will face
additional arguments on appeal or during subsequent phases of the litigation, is not
a compelling basis for denying intervention. See id. at 20–22. Although AEC
argued that it did not intervene earlier merely “because it had no reason to suspect
the [c]ourt would cancel its leases,” cf. id. at 23–24, weighing all three timeliness
factors, we conclude that the District Court abused its discretion in concluding that
AEC’s motion was untimely.
Turning to the adequacy-of-representation element, we consider three
factors: “(1) whether the interest of a present party is such that it will undoubtedly
make all of a proposed intervenor’s arguments; (2) whether the present party is
capable and willing to make such arguments; and (3) whether a proposed
intervenor would offer any necessary elements to the proceeding that other parties
would neglect.” Citizens for Balanced Use v. Mont. Wilderness Ass’n, 647 F.3d
4
893, 898 (9th Cir. 2011). Although the arguments AEC seeks to raise would
become moot if intervention were granted, cf. W. Watersheds slip op. at 26, the
requirements in Rule 24(a) are to be “broadly interpreted in favor of intervention,”
and “our review is guided primarily by practical considerations, not technical
distinctions,” Citizens for Balanced Use, 647 F.3d at 897 (citation omitted). Here,
Plaintiffs have challenged over 2,200 federal leases across the American West.
See W. Watersheds slip op. at 6. AEC has invested tens of millions of dollars
acquiring and developing the leasehold interests imperiled by this litigation, and
therefore “has a substantial due process interest in the outcome of this litigation by
virtue of its contract” with the federal government, id. at 28. Thus, practical
considerations persuade us that AEC should be allowed to intervene both in the
phase one appeal and in future phases of litigation in which its remaining leases are
implicated.
Accordingly, we reverse that portion of the District Court’s first order
denying AEC’s motion to intervene in the phase one appeal. Likewise, we reverse
that portion of the District Court’s second order denying AEC’s motion to
intervene in future phases of the litigation.
Costs to be taxed against Plaintiffs-Appellees.
REVERSED and REMANDED for further proceedings.
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