1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 JOHN MUIR PROJECT of EARTH No. 2:24-cv-00909-TLN-JDP

ISLAND INSTITUTE; PLUMAS

11 FOREST PROJECT; and FEATHER

RIVER ACTION!,

12 ORDER Plaintiffs, 13 v. 14

UNITED STATES FOREST SERVICE;

15 and CHRISTOPHER CARLTON, Forest Supervisor of Plumas National Forest, 16 Defendants, 17 and 18

AMERICAN FOREST RESOURCE

19 COUNCIL, an Oregon non-profit Corporation, 20 Proposed Defendant- 21 Intervenor. 22 This matter is before the Court on Proposed Defendant-Intervenor, American Forest 23 Resource Council’s (“AFRC”) Motion to Intervene pursuant to Federal Rule of Civil Procedure 24 (“Rule”) 24. (ECF No. 15.) Plaintiffs John Muir Project of Earth Island Institute, Plumas Forest 25 Project, and Feather River Action! (collectively, “Plaintiffs”) filed a partial opposition. (ECF No. 26 21.) Defendants United States Forest Service (“Forest Service”) and Christopher Carlton 27 (collectively, “Defendants”) did not take a position. AFRC filed a reply. (ECF No. 23.) For the 28 foregoing reasons, the Court GRANTS AFRC’s motion. 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 Plaintiffs in this action are three nonprofit and/or volunteer groups that challenge 3 Defendants’ alleged failure to prepare an Environmental Impact Statement (“EIS”) in violation of 4 the National Environmental Policy Act (“NEPA”). (ECF No. 1 at 2.) According to Plaintiffs, 5 Defendants were required to prepare an EIS before approving a project to log and burn 217,721 6 acres of the Plumas National Forest (the “Central/West Slope Project” or the “Project”). (Id.) 7 The stated purpose of the Project is to mitigate wildfire risk to communities and critical 8 infrastructure in the Plumas National Forest through “fuels reduction and other vegetation 9 treatment,” and Defendants propose using a variety of methods such as mechanical thinning, 10 prescribed fire, and herbicides. (Id. at 15.) Plaintiffs allege the Project will have various adverse 11 effects, including destruction of old-growth and mature forests and impacts on native plants, 12 wildlife, and their habitats. (Id. at 3–7.) 13 On March 22, 2024, Plaintiffs filed a Complaint alleging a single claim for violations of 14 NEPA. (Id. at 20.) In short, Plaintiffs challenge the validity of the Forest Service’s approval of 15 the Central/West Slope Project and seek to enjoin the Project until Defendants comply with 16 NEPA. (Id. at 21–22.) 17 On August 22, 2024, AFRC filed the instant motion to intervene as a Defendant in this 18 action under Rule 24. (ECF No. 15.) AFRC is a regional trade association representing forest 19 product businesses and forest landowners, many of whom are frequent purchasers of timber sales 20 from the Plumas National Forest. (ECF No. 15-1 at 7; ECF No. 15-2 at 3.) Many of AFRC’s 21 members also base their operations in communities within and adjacent to the Plumas National 22 Forest. (ECF No. 15-2 at 3.) Defendants did not file a response, and Plaintiffs filed a partial 23 opposition. (ECF No. 21.) 24 II. STANDARD OF LAW 25 “A ‘party’ to litigation is ‘[o]ne by or against whom a lawsuit is brought.’” U.S. ex rel. 26 Eisenstein v. City of N.Y, 556 U.S. 928, 933 (2009) (citation omitted). A person may also 27 “become a ‘party’ to a lawsuit by intervening in the action.” Id. Rule 24 sets forth the 28 circumstances where a party may intervene in an action. There are two types of intervention 1 under Rule 24: intervention as of right and permissive intervention. 2 An applicant for intervention as of right under Rule 24(a)(2) must demonstrate that: 3 (1) the intervention application is timely; 4 (2) the applicant has a “significant protectable interest relating to the property or transaction that is the subject of the action”; 5 (3) “the disposition of the action may, as a practical matter, impair or 6 impede the applicant’s ability to protect its interest”; and 7 (4) “the existing parties may not adequately represent the applicant’s interest.” 8 9 Prete v. Bradbury, 438 F.3d 949, 954 (9th Cir. 2006) (quoting United States v. Alisal Water 10 Corp., 370 F.3d 915, 919 (9th Cir. 2004)). 11 An applicant for permissive intervention must demonstrate there is: (1) an independent 12 ground for jurisdiction; (2) a timely motion; and (3) a common question between the movant’s 13 claim or defense and the original action. Blum v. Merrill Lynch Pierce Fenner & Smith, Inc., 712 14 F.3d 1349, 1353 (9th Cir. 2013). “Permissive intervention is committed to the broad discretion of 15 the district court[.]” Orange Cnty. v. Air Cal., 799 F.2d 535, 539 (9th Cir. 1986) (citation 16 omitted). The party seeking intervention bears the burden of demonstrating all requirements have 17 been met. Alisal Water Corp., 370 F.3d at 919. “In determining whether intervention is 18 appropriate, courts are guided primarily by practical and equitable considerations, and the 19 requirements for intervention are broadly interpreted in favor of intervention.” Id. 20 III. ANALYSIS 21 AFRC primarily moves for intervention as of right pursuant to Rule 24(a)(2), but it also 22 moves for permissive intervention pursuant to Rule 24(b) in the alternative. (ECF No. 15 at 2–3.) 23 In Plaintiffs’ partial opposition, they oppose intervention as of right but not permissive 24 intervention. (ECF No. 21 at 2.) Notably, Plaintiffs do not propose placing any limitations on 25 AFRC’s involvement in this action. (Id. (“If the Court grants permissive intervention, AFRC 26 would have all the rights it would get through as-of-right intervention.”).) Plaintiffs request the 27 Court grant permissive intervention without addressing intervention as of right. (Id.) In reply, 28 AFRC argues the Court should address intervention as of right because the Court has discretion to 1 place limitations on AFRC’s permissive intervention and the standard of review for a denial of 2 intervention as of right is de novo compared to abuse of discretion for a denial of permissive 3 intervention. (ECF No. 23 at 6.) 4 As discussed further below, because the Court finds AFRC is entitled to permissive 5 intervention without any limitations, the Court need not and does not address intervention as of 6 right. See Ceja-Corona v. CVS Pharm., Inc., No. 1:12-CV-01868-AWI, 2014 WL 792132, at *2 7 n.1 (E.D. Cal. Feb. 26, 2014) (declining to address intervention as of right after finding 8 permissive intervention to be appropriate); Ariz. Democratic Party v. Hobbs, No. CV-20-01143- 9 PHX-DLR, 2020 WL 6559160, at *1 (D. Ariz. June 26, 2020) (same); Powers v. McDonough, 10 No. 2:22-CV-08357-DOC-KSX, 2024 WL 2307490, at *3 n.4 (C.D. Cal. Apr. 5, 2024) (same). 11 AFRC fails to persuade the Court that the existence of different standards of review is relevant at 12 this stage, especially considering that the Court is granting AFRC permissive intervention without 13 limitations. Although Plaintiffs do not oppose AFRC request for permissive intervention, the 14 Court briefly considers each prong of the permissive intervention analysis in turn. 15 A. Independent Grounds for Jurisdiction 16 “The prevailing view of the federal courts is that the claims of permissive Rule 24(b) 17 intervenors must be supported by independent jurisdictional grounds.” Blake v. Pallan, 554 F.2d 18 947, 955 (9th Cir. 1977). “This requirement stems . . . from [the] concern that intervention might 19 be used to enlarge inappropriately the jurisdiction of the district courts.” Freedom from Religion 20 Found., Inc. v. Geithner, 644 F.3d 836, 843 (9th Cir. 2011) (citing Fed. R. Civ. P. 82). This 21 concern typically arises in diversity cases. Id. “Where the proposed intervenor in a federal- 22 question case brings no new claims, the jurisdictional concern drops away.” Id. at 844. 23 Therefore, “the independent jurisdictional grounds requirement does not apply to proposed 24 intervenors in federal-question cases when the proposed intervenor is not raising new claims.” Id. 25 The parties do not address this requirement in their briefing. However, the Court has 26 federal question jurisdiction because Plaintiffs assert Defendants violated NEPA, a federal law. 27 (ECF No. 1 at 4, 20–21.) Because this is a federal question case and AFRC “is not raising new 28 1 claims,” the Court finds the independent grounds for jurisdiction requirement does not apply. 2 Freedom from Religion Found., Inc., 644 F.3d at 844. 3 B. Timeliness of Application 4 In determining whether a motion is timely, the Court considers: (1) the stage of the 5 proceeding; (2) any prejudice to the other parties; and (3) the reason for and length of any delay. 6 Orange Cty., 799 F.2d at 537. A motion is generally considered timely when “made at an early 7 stage of the proceedings, the parties would not have suffered from the grant of intervention at that 8 early stage, and intervention would not cause disruption or delay in the proceedings.” Citizens for 9 Balanced Use v. Montana Wilderness Ass’n, 647 F.3d 893, 897 (9th Cir. 2011). 10 Plaintiffs filed their Complaint on March 22, 2024. (ECF No. 1.) AFRC filed the instant 11 motion on August 22, 2024. (ECF No. 15.) No dispositive motions have been filed or considered 12 in this case, and Plaintiffs do not dispute that AFRC’s motion is timely. (ECF No. 21 at 5.) 13 Accordingly, the Court concludes AFRC’s motion to intervene is timely and will not prejudice 14 existing parties or cause delay within the meaning of Rule 24. 15 C. Common Questions of Law or Fact 16 The third factor “requires only that [the proposed intervenor’s] claim or defense and the 17 main action have a question of law or fact in common.” Kootenai Tribe of Idaho v. Veneman, 18 313 F.3d 1094, 1108 (9th Cir. 2002), abrogated on other grounds by Wilderness Soc. v. U.S. 19 Forest Serv., 630 F.3d 1173 (9th Cir. 2011). Rule 24(b) does not require an intervenor to “have a 20 direct personal or pecuniary interest in the subject of the litigation.” Id. (citing SEC v. U.S. Realty 21 & Improvement Co., 310 U.S. 434, 459 (1940)). 22 AFRC argues it seeks to defend the Central/West Slope Project because its members stand 23 to suffer from loss of timber sales if the Project does not proceed. (ECF No. 15-1 at 15.) AFRC 24 also filed a proposed answer, which asserts defenses that share common questions of law and fact 25 with the main action. (ECF No. 17.) Moreover, Plaintiffs do not dispute that this final 26 requirement is met. Therefore, the Court finds the main action and AFRC’s proposed defense 27 have common questions of law and fact. 28 1 In sum, the Court concludes all the requirements of Rule 24(b) are met and GRANTS 2 | AFRC’s motion to permissively intervene as a Defendant in this action without limitations. 3 IV. CONCLUSION 4 For the reasons set forth above, AFRC’s Motion to Intervene (ECF No. 15) is GRANTED 5 || as to AFRC’s request for permissive intervention. AFRC is ORDERED to file its proposed 6 | answer not later than seven (7) days from the electronic filing date of this Order. 7 IT IS SO ORDERED. 8 || Date: November 8, 2024 9

11

TROY L. NUNLEY

CHIEF UNITED STATES DISTRICT JUDGE

13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28