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Friends of Animals v. Kempthorne

September 14, 2006

FRIENDS OF ANIMALS, PLAINTIFF,
v.
DIRK KEMPTHORNE, SECRETARY OF THE INTERIOR, DEFENDANT.



The opinion of the court was delivered by: Deborah A. Robinson United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Safari Club International, Safari Club International Foundation and the Exotic Wildlife Association's Motion to Intervene (Docket No. 15) was referred to the undersigned for determination pursuant to LCvR 72.2(a). Upon consideration of the motion to intervene, the memoranda in support thereof and in opposition thereto and the entire record herein, said motion will be granted.

BACKGROUND

Plaintiff Friends of Animals is "an international, non-profit, animal advocacy organization . . . [which] works to protect animals from cruelty, abuse, and institutionalized exploitation." First Amended Complaint (Docket No. 14), ¶9. Plaintiff and its members claim "a long-standing personal, informational, philosophical, and scientific interest in the scimitar-horned oryx, addax, and dama gazelle[,]" three antelope species native to the Sahelo-Saharan Friends of Animals v. Kempthorne 2 regions of northern and western Africa. Id., ¶¶2, 9-10. Plaintiff acknowledges that Defendant Secretary of the Interior issued a final decision listing all three antelope species as endangered; however, by its first amended complaint, Plaintiff seeks judicial review of a separate regulation issued by the Secretary excluding antelope bred in captivity in the United States from the Endangered Species Act's prohibition on killing and selling endangered species. Id., ¶¶2-3, 73-74;*fn1 see also Joint Status Report (Docket No. 12) at 1-2. More specifically, Plaintiff alleges that through her issuance of the challenged regulation, the Secretary violated four enumerated provisions of the Endangered Species Act, and in addition, failed to comply with "the nation's flagship environmental law, the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4332." Id., ¶4, 100-120. Plaintiff seeks both declaratory and injunctive relief, as well as an award of its costs of its litigation. Id. at 30-31 (Request for Relief).

On the day before Defendant filed her answer to Plaintiff's first amended complaint,*fn2 Safari Club International, Safari Club International Foundation and the Exotic Wildlife Association (hereinafter "movants" or "proposed intervenors") moved, pursuant to Rule 24 of the Federal Rules of Civil Procedure, "to intervene in this action as a defendant in support of Defendant Gale Norton[.]" Memorandum of Law in Support of Safari Club International, Safari Club International Foundation and the Exotic Wildlife Association's Motion to Intervene Friends of Animals v. Kempthorne 3 ("Memorandum") at 5. Safari Club International and Safari Club International Foundation are non-profit corporations, the missions of which include "the conservation of wildlife, protection of the hunter, and education of the public concerning hunting and its use as a conservation tool." Id. at 7. The Exotic Wildlife Association is a trade organization, the stated mission of which is "to encourage and expand the conservation of indigenous and non-indigenous hoofstock animals, and to help [its] members develop and strengthen the markets for their animals. Id. at 9. The proposed intervenors maintain that the three species of antelope which are the subject of this action "are species that [their] members own, breed, market, hunt and otherwise manage through sustainable use methods of conservation[,]" and that if Plaintiff is successful in this litigation, the resulting procedures and restrictions on the ownership, use and management of these species "will make it impossible" for them and their members to continue their efforts. Motion to Intervene at 2. The proposed intervenors submit that "[they] have significant interests in the outcome of this litigation that are not adequately represented by the [Plaintiff] or the Defendant[,]" and that "[they] meet all the requirements to be granted intervention as of right, and alternatively intervention by permission of this Court." Id. at 2-3.

Proposed intervenors submit that "as entities whose interests (including the interests of their members) will be injured by the relief that [Plaintiff] seeks and are not adequately represented in this case, are entitled to intervene as of right." Memorandum at 18. Alternatively, proposed intervenors seek permissive intervention, and in support of that request, submit that "the defenses that they raise . . . share a factual and legal basis with the claims raised by [Plaintiff's] First Amended Complaint and possible governmental defenses to those claims." Id.

Friends of Animals v. Kempthorne 4 at 24-25.*fn3

Plaintiff, in its opposition, concedes that proposed intervenors' motion is timely. However, Plaintiff disputes that proposed intervenors have a legally protected interest in this action "that is directly at stake and risks impairment[,]" and asserts that "the interests of [the proposed intervenors] are adequately represented by the Defendant Secretary of the Interior." Plaintiff's Opposition to Motion to Intervene ("Opposition") (Docket No. 17) at 2, 3-12. Plaintiff asks that the proposed intervenors' motion be denied; in the alternative, Plaintiff asks that any intervention "[be limited] . . . to the particular issues of this case that arguably affect [their] interests and generally to the remedy phase of this litigation where those interests might arguably be impaired." Id. at 1, 12-16.

Defendant did not file an opposition or other response to the motion to intervene.

The proposed intervenors, in their reply, again submit that they are entitled to intervention as of right, or alternatively, should be allowed permissive intervention. Safari Club International, Safari Club International Foundation and the Exotic Wildlife Association's Reply to Plaintiff's Opposition to Motion to Intervene ("Reply") (Docket No. 20) at 3-21. Proposed intervenors also submit that the limits on their intervention which Plaintiff suggests are inappropriate. Id. at 21-23.

DISCUSSION

The prerequisites for both intervention as of right and permissive intervention are set forth in Rule 24 of the Federal Rules of Civil Procedure. With respect to intervention as of right, Friends of Animals v. Kempthorne 5 the rule provides, in pertinent part, that [u]pon timely application anyone shall be permitted to intervene in an action . . . when the applicant claims an interest relating to the property or transaction which is the subject of the action and 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, unless the applicant's interest is adequately represented by existing parties.

Fed.R.Civ.P. 24(a)(2). In its interpretation of this rule, the District of Columbia Circuit has identified four factors upon which qualification for intervention as of right is dependent:

(1) the timeliness of the motion; (2) whether the applicant "claims an interest relating to the property or transaction which is the subject of the action"; (3) whether "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"; and ...


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