NOT FOR PUBLICATION FILED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.

2 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.

3 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

4 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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