CHAPTER 10 GETTING A SEAT AT THE TABLE: INTERVENTION IN ADMINISTRATIVE APPEALS AND JUDICIAL CHALLENGES
| Jurisdiction | United States |
(Sep 2016)
GETTING A SEAT AT THE TABLE: INTERVENTION IN ADMINISTRATIVE APPEALS AND JUDICIAL CHALLENGES
Moderator:
Shareholder
Liskow & Lewis
New Orleans, LA
Michael J. McGrady
Senior Assistant Attorney General
Wyoming Attorney General's Office
Cheyenne, WY
Laura K. Granier
Partner
Davis Graham & Stubbs LLP
Reno, NV
Robin L. Cooley
Staff Attorney
Earthjustice
Denver, CO
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JONATHAN A. HUNTER is a shareholder in the New Orleans office of Liskow & Lewis, where he devotes his practice full time to representing oil and gas companies. As leader of Liskow & Lewis's federal oil and gas practice, he advises upstream oil and gas companies on matters governed by the Outer Continental Shelf Lands Act, the Mineral Leasing Act, the False Claims Act, the Federal Oil and Gas Royalty Management Act, the Foreign Investment and National Security Act, the National Environmental Policy Act, and numerous other environmental statutes and related regulations. He has successfully represented federal oil and gas lessees in dozens of administrative and judicial proceedings, including numerous regulatory enforcement and penalty proceedings, as well as disputes involving multi-billion dollar royalty, lease cancelation, and fraud claims. On behalf of federal oil and gas lessees, he has successfully intervened in lawsuits challenging the United States Department of the Interior's administration of the federal oil and gas leasing program. A graduate of Yale College and the Louisiana State University Law Center, he has written and lectured extensively on oil and gas subjects. He helped create and has co-chaired the Rocky Mountain Mineral Law Foundation's Short Course on Federal Offshore Oil & Gas Leasing and Development, and has taught Federal Offshore Oil and Gas Law and basic Oil and Gas Law at Tulane Law School. He has been listed in both Chambers USA America's Leading Lawyers for Business and The Best Lawyers in America for many years. He is currently the President of the Rocky Mountain Mineral Law Foundation.
MICHAEL J. McGRADY is a Senior Assistant Attorney General and Supervisor of the Natural Resources Section within the Water and Natural Resources Division of the Wyoming Attorney General's Office. Michael received his J.D. from the University of Wyoming in 2006 and began his career as a law clerk to the Honorable Terrence L. O'Brien of the United States Court of Appeals for the Tenth Circuit. Before joining the Wyoming Attorney General's Office in 2011, Michael worked at a private insurance defense firm in Cheyenne. Michael represents the State of Wyoming in litigation that the Governor determines is necessary to protect Wyoming's natural resources. The subject matter of these cases is diverse and includes litigation arising under the Clean Air Act, the Endangered Species Act, the National Environmental Policy Act, the Federal Land Policy and Management Act, and the National Forest Management Act.
LAURA K. GRANIER is a partner at Davis Graham & Stubbs LLP in Reno, Nevada. Ms. Granier's practice includes complex commercial litigation and regulatory work including government affairs with a focus on natural resources and land use. She has successfully handled several issues of first impression involving mineral resources in Nevada including a 2011 case enjoining enforcement of a state tax imposed on mining claims determined to be unconstitutional as well as cases involving complex land tenure issues and water rights. Ms. Granier has been involved in the land use planning process in Nevada for Greater Sage Grouse conservation efforts and currently is lead counsel for a number of Nevada counties and private plaintiffs challenging the BLM's and USFS's decisions issued in that land use planning process. Ms. Granier successfully defended one of the largest qui tam actions brought in Nevada challenging the constitutionality of an initial public offering. She has worked closely with legislators in previous sessions on challenging issues related to water, mineral resources, revenue, education, and land use. Her regulatory experience includes a broad spectrum of work before various agencies with regulatory jurisdiction over environmental issues, mining, education, taxes, land use, and public utilities.
ROBIN COOLEY is a staff attorney in Earthjustice's Rocky Mountain office in Denver, Colorado where she works to protect the wild places, species, and communities of the Rocky Mountain region and to promote a clean energy future. Since joining Earthjustice in 2007, Robin has litigated cases in federal courts involving numerous federal environmental laws, including the Endangered Species Act, National Environmental Policy Act, Federal Land Policy and Management Act, Mineral Leasing Act, and Clean Air Act. Robin received her B.S. from Cornell University in environmental systems technology and her law degree from University of Colorado Law School, where she graduated Order of the Coif and served as an editor on the University of Colorado Law Review. Prior to joining Earthjustice, Robin served as an Honor's program attorney for the U.S. Department of the Interior's Office of the Solicitor in Washington, DC, a staff attorney for the Western Environmental Law Center in Taos, NM, and a lecturer in the Environmental Law Clinic at the University of Denver School of Law.
I. Introduction
This paper addresses the legal framework governing intervention in pending federal judicial proceedings, as well as intervention in administrative appeals. For illustration, this paper addresses intervention into cases pending before the Interior Board of Land Appeals as an example of intervention in an administrative appeal involving public lands.1
II. Intervention in Federal Judicial Proceedings
Intervention in federal courts is governed by Rule 24 of the Federal Rules of Civil Procedure. Rule 24 establishes two types of intervention: (1) intervention as of right and (2) permissive intervention.
A. Intervention of Right
1. Overview
Intervention of right is governed by Rule 24(a) of the Federal Rules of Civil Procedure. According to the rule:
On a timely motion, a court must permit anyone to intervene who:
(1) is given an unconditional right to intervene by a federal statute; or
(2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest. 2
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Some statutes give parties an unconditional right to intervene. 3 Otherwise, courts may grant intervention as a matter of right when the following four requirements are satisfied: (1) the applicant claims an interest relating to the property or transaction which is the subject of the action; (2) the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest; (3) the applicant's interest is inadequately represented by existing parties; and (4) the motion to intervene is timely. 4 Failure to satisfy any one of the four requirements precludes intervention of right. 5
2. Direct, Substantial, and Legally or Significantly Protectable Interest
Intervention of right requires a direct, substantial, and legally or significantly protectable interest in the proceedings.6 The "interest" test directs courts to make a practical, threshold inquiry.7 In addition, the test serves as a practical device for disposing of the issues presented by the lawsuit by involving as many concerned parties as is compatible with efficiency and due process.8
In general, courts will consider (1) whether the interest is protectable under some law and (2) whether there is a relationship between the protectable interest and the claims at issue.9
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Specifically, the interest must be related to the property or transaction which is the subject of the action.10 Property interests are the most elementary type of right that intervention as of right protects.11
The interest must be "significantly protectable" to be sufficient.12 However, an intervener's interest need not be protected by the statute under which the original litigation was brought to qualify as "significantly protectable."13
An intervener's interest is "obvious" when the intervenor asserts a claim to property that is the subject matter of the suit, but intervention of right is not limited to such situations.14 Further, the Ninth Circuit has held that an interest is sufficient when resolution of the plaintiff's claim "actually will affect the applicant."15
3. Possibility of "Impairment" of Significantly Protectable Interest
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Once an applicant for intervention establishes a significantly protectable interest in the suit, courts will generally determine that, as a practical matter, an applicant's interest would be impaired or impeded if intervention were not granted.16 Even when the applicant for intervention would not be bound by the court's ruling, courts have considered the "practical consequences" of a denial of intervention. Thus, the fact that an applicant would be able to file its own suit on the matter if its motion to intervene were denied does not necessarily preclude intervention as of right.17
Further, courts will likely find an interest to be sufficiently impaired where the applicant would be subject to compliance with a regulatory decision from a lawsuit in which the applicant was not a party.18 Finally, the D.C. Circuit has held that an applicant's interest would be sufficiently impaired when (I) the applicant's involvement likely would lessen the need for future litigation, (2) the additional number of parties were neither unusual nor unmanageable, and (3) granting...
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