NOT FOR PUBLICATION FILED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
MONTANA WILDLIFE FEDERATION; No. 20-35793
THE WILDERNESS SOCIETY;
NATIONAL AUDUBON SOCIETY; D.C. No. 4:18-cv-00069-BMM
NATIONAL WILDLIFE FEDERATION;
MONTANA AUDUBON,
MEMORANDUM*
Plaintiffs-Appellees,
v.
DEB HAALAND, in her official capacity as
Secretary of the Interior; DONATO JUDICE,
in his official capacity as Montana Bureau of
Land Management State Director; BUREAU
OF LAND MANAGEMENT; U.S.
DEPARTMENT OF THE INTERIOR,
Defendants,
STATE OF WYOMING; WESTERN
ENERGY ALLIANCE; STATE OF
MONTANA,
Intervenor-Defendants,
v.
ANSCHUTZ EXPLORATION
CORPORATION, Proposed Defendant-
Intervenor,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Movant-Appellant.
Appeal from the United States District Court
for the District of Montana
Brian M. Morris, District 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 order denying its motion to intervene in this case. We have
jurisdiction under 28 U.S.C. § 1291, and we reverse.
In the underlying litigation giving rise to this appeal, Plaintiffs challenge a
policy adopted by the Bureau of Land Management in 2017 to accelerate the
issuance of federal oil and gas leases. We assume familiarity with the background
of this policy, which we discussed in a recent opinion. See W. Watersheds Project
v. Haaland, No. 20-35780, __ F.4th __ (9th Cir. __, 2022). As in Western
Watersheds, the Plaintiffs here challenge certain lease sales that took place under
this policy, including a June 2018 sale in Wyoming at which AEC acquired oil and
gas leases spanning roughly 24,000 acres. In May 2020, the District Court
partially granted Plaintiffs’ motion for summary judgment and vacated these lease
sales. Less than two months after the District Court’s order, AEC moved to
intervene solely to appeal the vacatur of the sales impacting its leases.
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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 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
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. Here, AEC moved to intervene
within the 60-day window to appeal the District Court’s summary judgment
decision, which weighs in favor of a conclusion that its motion was timely, see W.
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Watersheds, slip op. at 15. The only prejudice identified by the District Court was
the prospect that Plaintiffs would be forced to confront “additional . . . briefing”
and “possible additional arguments” on appeal. As we have explained in a nearly
identical context, however, that is “a poor reason to deny intervention, particularly
given the possibility that [AEC’s] additional arguments could prove persuasive.”
W. Watersheds, slip op. at 21. Although AEC argued that it did not intervene
earlier merely because “it had no reasonable basis to believe that the court would
vacate its leases,” cf. W. Watersheds, slip op. 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.
To evaluate 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
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
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distinctions,” Citizens for Balanced Use, 647 F.3d at 897 (citation omitted). Here,
Plaintiffs have challenged lease sales encompassing hundreds of thousands of acres
across Montana and Wyoming. Like the would-be intervenor in Western
Watersheds, see slip op. at 9, AEC has invested considerable resources to acquire
and develop the leasehold interest now jeopardized by this litigation, and thus “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, the practical considerations
in this case persuade us that AEC should be allowed to intervene for purposes of
appealing the District Court’s summary judgment order.
Accordingly, we reverse the District Court’s order denying AEC’s motion to
intervene. We need not reach the court’s other grounds for denying intervention.
Costs to be taxed against Plaintiffs-Appellees.
REVERSED and REMANDED for further proceedings.
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