FILED

NOT FOR PUBLICATION

MAY 06 2019

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

NORTHWEST ENVIRONMENTAL No. 18-35291 ADVOCATES, an Oregon non-profit corporation, D.C. No. 2:16-cv-01866-JCC

Plaintiff-Appellee,

MEMORANDUM*

v.

UNITED STATES DEPARTMENT OF

COMMERCE; et al.,

Defendants-Appellees,

v.

WASHINGTON CATTLEMEN’S

ASSOCIATION; WASHINGTON STATE

FARM BUREAU FEDERATION,

Interested Party- Appellants.

Appeal from the United States District Court for the Western District of Washington John C. Coughenour, District Judge, Presiding

Argued and Submitted February 6, 2019

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Seattle, Washington

Before: IKUTA and CHRISTEN, Circuit Judges, and CHOE-GROVES,** Judge.

Washington Cattlemen’s Association (WCA) and Washington State Farm

Bureau Federation (WFB) appeal the district court’s order denying their motion for

intervention as of right and for permissive intervention under Rule 24 of the

Federal Rules of Civil Procedure. We have jurisdiction under 28 U.S.C. § 1291.

Because WCA and WFB “will suffer a practical impairment of [their]

interests as a result of the pending litigation,” City of Emeryville v. Robinson, 621

F.3d 1251, 1259 (9th Cir. 2010) (quoting California ex rel. Lockyer v. United

States, 450 F.3d 436, 441 (9th Cir. 2006)), including the potential loss of funding

and imposition of more burdensome requirements on their operations, the district

court erred by concluding that WCA and WFB lacked a significantly protectable

interest with respect to claims 4 and 5. The government’s assertion, without

support in the record, that the state of Washington might supplement the loss of

funding despite the outcome of the litigation does not render WCA’s or WFB’s

interests “wholly remote and speculative.” Id. Because the constituents of WFB

and WCA are the intended beneficiaries of the grant program and bear the burdens

** The Honorable Jennifer Choe-Groves, Judge for the United States Court of International Trade, sitting by designation. 2 of any additional management requirements imposed on their operations, they have

an immediate existing interest in the subject of the controversy. See Lockyer, 450

F.3d at 441.

Furthermore, because WCA and WFB have “more narrow, parochial

interests” than the state of Washington and because “the applicant–intervenor’s

burden in showing inadequate representation is minimal,” Forest Conservation

Council v. U.S. Forest Serv., 66 F.3d 1489, 1498–99 (9th Cir. 1995), abrogated on

other grounds by Wilderness Soc. v. U.S. Forest Serv., 630 F.3d 1173 (9th Cir.

2011) (en banc), the district court erred by determining that Washington

adequately represented WCA’s and WFB’s interests with respect to claims 2, 3, 4,

and 5. We reject the government’s argument that the state of Washington will

advance the same arguments in litigation as the WCA and WFB, because the

record shows that Washington seeks to promote the “highest possible standards”

for water purity, while the proposed intervenors have a narrower parochial interest

3 in ensuring the continued economic feasibility of their constituents’ operations.

Moreover, the record indicates that WCA and WFB have specialized expertise.1

Because Rule 24(a) of the Federal Rules of Civil Procedure imposes a

mandatory duty on a district court to permit intervention by anyone who meets the

relevant criteria, and given that WCA and WFB meet this criteria by demonstrating

a significantly protectable interest that was not adequately represented by existing

parties, the district court erred by denying intervention as of right.2

REVERSED AND REMANDED.

1 The dissent fails to explain how WCA and WFB have “the very same objective” and “the same interest” as Washington, given that Washington seeks to promote the “highest possible standards” for water purity, while WCA and WFB seek to promote the economic viability of their constituents’ operations. These interests may conflict in the litigation. Because Washington does not adequately represent WCA’s and WFB’s interests, we do not reach the question whether Washington should be considered an “existing party” because it was not joined when WCA and WFB’s motion was filed. 2 In light of this conclusion, we do not reach the question whether the district court erred by denying permissive intervention. 4

FILED

Northwest Environmental Advocates v. United States Department of Commerce et al., No. 18-35291 MAY 06 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

CHRISTEN, Circuit Judge, dissenting:

The district court correctly ruled that Washington State adequately

represents the interests of the Washington Cattlemen’s Association (WCA) and the

Washington State Farm Bureau Federation (WFB), particularly in the context of

this litigation where the defendants, intervenors, and proposed intervenors all seek

precisely the same outcome (ongoing grant funding) for precisely the same reason

(ongoing funding is consistent with the statutory requirements). Because the

majority’s reasoning cannot be squared with Rule 24(a)(2)’s requirements for

intervention as of right, I respectfully dissent.

Intervention as of right is only appropriate if an existing party does not

adequately represent the putative-intervenor’s interests. Fed. R. Civ. P. 24(a)(2).

To determine whether to allow intervention, courts examine: “[1] whether the

interest of a present party is such that it will undoubtedly make all the intervenor’s

arguments; [2] whether the present party is capable and willing to make such

arguments; and [3] whether the intervenor would offer any necessary elements to

the proceedings that other parties would neglect.” California v. Tahoe Reg’l

Planning Agency, 792 F.2d 775, 778 (9th Cir. 1986). If a party and a proposed

intervenor “share the same ultimate objective, a presumption of adequacy applies[.]” Perry v. Proposition 8 Official Proponents, 587 F.3d 947, 951 (9th Cir.

2009). Moreover, “when the government is acting on behalf of a constituency that

it represents[,]” the government is presumed to adequately represent its citizens

unless there is “a very compelling showing to the contrary[.]” Arakaki v.

Cayetano, 324 F.3d 1078, 1086 (9th Cir. 2003). Indeed, when the government is

already representing its constituents, allowing those citizens to intervene on only a

nominal showing risks paralyzing the suit with a deluge of additional parties. See

6 Moore’s Federal Practice, § 24.03[4][a][v][A] (3d ed.) (“Acting in a type of

representative capacity is a basic governmental function, and the business of

government could hardly be conducted if, in matters of litigation, individual

citizens could usually or always intervene and assert individual points of view.”).

Here, WCA and WFB have the very same objective as Washington State: to

secure continued grant funding to the State pursuant to a series of environmental

statutes. WCA, WFB, and Washington State also have the same interest:

Washington wants ongoing grant money so it can continue to fund a number of

environmental programs, and WCA and WFB want continued funding for those

programs so their members can continue to participate in them. Rule 24(a)(2)

dictates that WCA and WFB must rebut a presumption against intervention, and

they must do so with a “very compelling showing[.]” Id. Yet the putative

2 intervenors failed to make any convincing showing—much less a compelling

one—that Washington would not adequately represent WCA and WFB. They

failed to identify a single argument that Washington is unwilling to make and the

record suggests there isn’t one—during the briefing on remedy before the district

court, Washington explicitly and fully incorporated all of WCA’s and WFB’s

arguments.1

The majority highlights WCA’s and WFB’s specialized expertise and points

to various reasons why Washington’s and the putative-intervenors’ environmental

interests are generally different. See Ante at 3-4. But that only sidesteps the

controlling question. What the majority does not explain is why the putative-

intervenors’ expertise in farming and ranch management entitles them to intervene

in this litigation as a matter of right.2 The question in this litigation is whether the

EPA (consistent with federal statutory guidelines) should continue providing grant

money to Washington. Washington and the putative-intervenors may disagree

1 See Case No. 16-CV-01866-JCC, Dkt. No. 105 at 9 (“Washington adopts and fully incorporates the arguments made by Amici Washington State Farm Bureau Federation and Washington Cattlemen’s Association[.]”) 2 This court has previously ruled that the sort of specialized knowledge WCA and WFB have is “not sufficient by itself to support intervention as of right[.]” Prete v. Bradbury, 438 F.3d 949, 958 n.13 (9th Cir. 2006).

3 about the most economical water purity standards, see Ante at 3, but that has

nothing to do with whether the EPA is statutorily allowed to approve Washington’s

pollution management plan or continue providing grant money.

The majority’s analysis is contrary Rule 24’s express requirements, allowing

intervention as a matter of right simply because WCA and WFB are beneficiaries

of certain grant funding. This rationale overlooks that there are scores of federal

programs that either benefit or regulate millions of Americans; it is simply

unworkable to allow any interested party to intervene any time a federal program is

in the crosshairs. Yet the majority offers no limiting principle. Under its

reasoning, beneficiaries who can claim a unique interest in a federal program must

be allowed to intervene as of right—regardless of whether that interest is marginal

or distinct in the context of the litigation. The majority’s ruling invites truly

unworkable case management problems.

Rule 24(a) was designed to allow necessary parties to intervene, see Fed. R.

Civ. P. 24(a) advisory committee’s note to 1966 amendment, not open the door to

cumulative arguments from redundant parties. Because the majority’s decision

defies the terms of Rule 24(a)(2), I respectfully dissent.

4