The opinion of the court was delivered by: Beryl A. Howell United States District Judge
Pending before this Court are three Motions to Intervene filed by four
organizations: Friends of Animals ("FOA") has moved to intervene as a
defendant in two cases, Safari Club International
v. Salazar, et al., Case No. 11-cv-01564 ("SCI Action"), ECF No. 11,
and Exotic Wildlife Association, et al. v. U.S. Department of the
Interior, et al., Case No. 12-cv-00340 ("EWA Action"), see Case No.
11-cv-01564, ECF No. 34; and three other organizations, Defenders of
Wildlife ("DOW"), The Humane Society of the United States ("HSUS"),
and Born Free USA (collectively, "DOW-proposed intervenors") have
moved to intervene as defendants in the SCI Action, ECF No.
13. *fn1 The SCI and EWA Actions have been
consolidated, along with Owen, et al. v. United States Department of
the Interior, et al., Case No. 12-cv-00194 ("Owen Action").*fn2
See Minute Orders (Feb. 21, 2012; March 16, 2012). For the
reasons explained below, the motions for intervention as of right are
granted in part as to FOA and DOW, and denied as to HSUS and Born Free
USA. FOA and DOW shall be defendant-intervenors with respect to the
consolidated case as a whole. *fn3
A. Overview of the Consolidated Cases
A brief summary of the facts underlying these consolidated actions against the Federal Defendants is helpful to understanding the claims in each of the actions and the interests of the proposed defendant-intervenors. In 1991, the FWS published a proposed rule to list as endangered species under the Endangered Species Act ("ESA") three antelope species, namely, the scimitar-horned oryx, dama gazelle, and addax ("Three Antelope species"). See 56 Fed. Reg. 56,491 (Nov. 5, 1999). No action was taken on this proposed rule until September 2, 2005, when the FWS listed the Three Antelope species as endangered under the ESA, and also added a new regulation, codified at 50 C.F.R. § 17.21(h), authorizing certain otherwise prohibited activities for U.S. captive-bred individuals of the Three Antelope species ("Captive-bred Exemption"). 70 Fed. Reg. 52, 319 and 52, 310 (Sept. 2, 2005).
FOA and the DOW-proposed intervenors subsequently and successfully filed suit alleging that the FWS unlawfully promulgated the Captive-bred Exemption. See Friends of Animals v. Salazar, 626 F. Supp. 2d 102 (D.D.C. 2009) (Kennedy, J.). Specifically, Judge Kennedy held that "the text, context, purpose and legislative history of section 10 [of ESA] requires case-by-case consideration before the FWS may permit otherwise prohibited acts to enhance the propagation or survival of endangered species," and that the "blanket exemption" reflected by the Captive-bred Exemption violated the ESA's subsection 10(c) requirement to provide public notice in the Federal Register of each application for a permit allowing such otherwise prohibited acts. Id. at 115. The court remanded the rule to the FWS for further proceedings. Id. at 115-116.
In 2010, both SCI and the Owen plaintiffs petitioned the FWS to delist from the endangered species list the U.S. captive-bred herds of the Three Antelope species, but the FWS has taken no action on those petitions. See SCI Action, ECF No. 1, SCI Compl. ¶ 10; Owen Action, ECF No. 1, Owen Compl. at 1.
On July 7, 2011, the FWS published a proposed rule to withdraw the Captive-bred Exemption, consistent with the holding in Friends of Animals. See 76 Fed. Reg. 39,804 ("Removal of the Regulation that Excludes U.S. Captive-Bred Scimitar-Horned Oryx, Addax, and Dama Gazelle From Certain Prohibitions") (July 7, 2011). This would eliminate the exclusion for the Three Antelope species from certain prohibitions in the ESA and require any person intending to engage in otherwise prohibited activity to qualify for an exemption or obtain a permit authorizing such activity.
The SCI Action was then filed in this district on August 31, 2011, alleging that the Federal Defendants violated the ESA and Administrative Procedure Act (APA) by including U.S. captive-bred herds of the Three Antelope species in the 2005 listing determination and for failing to respond in a timely manner to SCI's petition for delisting. See SCI Action, ECF No. 1, SCI Compl. ¶ 2. Likewise, the Owen Action, which was filed in the Northern District of Texas in October, 2011, alleges that the FWS violated the ESA and the APA by failing to respond to the EWA's petition for delisting. See Owen Action, ECF No. 1, Owen Compl. at 1. Following transfer of the Owen Action to this jurisdiction, this Court consolidated the SCI Action with the Owen Action. See Minute Order (Feb. 21, 2012).*fn4
On January 5, 2012, FWS issued its final rule removing the Captive-bred Exemption, effective on April 4, 2012 ("Final Rule"). 77 Fed. Reg. 431 (Jan. 5, 2012). The EWA Action was filed on March 2, 2012, to invalidate and set aside the Final Rule as violative of the APA. See EWA Action, ECF No. 1, EWA Compl. at 4. On March 16, 2012, this Court consolidated the SCI and Owen Actions with the EWA Action. See Minute Order (Mar. 16, 2012). The plaintiffs in both the SCI Action and the EWA Action have pending motions for preliminary injunctions, through which they seek to enjoin enforcement of the Final Rule. See SCI Action, ECF No. 26; EWA Action, ECF No. 3.
B. The Proposed Defendant-Intervenors
FOA and the DOW-proposed intervenors have moved to intervene as
defendants in the SCI Action, and FOA has also moved to intervene in
the more recently filed EWA action. See SCI Action, ECF Nos. 11, 13;
EWA Action, see Case No. 11-cv-01564, ECF No. 34. These four
organizations have submitted declarations indicating that they share
three salient attributes relevant to their pending motions to
intervene. First, each of these organizations was a plaintiff in the
successful lawsuit against FWS in 2009, in which Judge Kennedy held
that the Captive-bred Exemption, codified at 50 C.F.R. § 17.21(h),
violated the ESA and the National Environmental Policy Act.*fn5
Friends of Animals, 626 F. Supp. 2d at 105. Second, these
four organizations monitor applications for permits seeking
authorization to engage in otherwise prohibited actions involving
endangered species. See FOA Mot. to Intervene in SCI Action, Att. 1,
ECF No. 11-1 (Declaration of Priscilla Feral, President of FOA, dated
Nov. 1, 2011) ("Feral Decl.")*fn6 , ¶ 22; see also
DOW-Proposed Intervenors' Mot. to Intervene in SCI Action, Ex. 1, ECF
No. 13-2 (Declaration of Nina Fascione, (former) Vice President of
DOW, dated Nov. 10, 2008) ("Fascione Decl.") , ¶¶ 5, 7-14; id. at Ex.
2, ECF No. 13-3 (Declaration of Andrew Page, Senior Director at HSUS,
dated Nov. 4, 2008) ("Page Decl."), ¶¶ 6-8, 13-18; id. at Ex. 3, ECF
No. 13-4 (Declaration of Marcia Slackman, member of HSUS, dated Nov.
5, 2008) ("Slackman Decl."), ¶¶ 4-5, 8-9; id. at Ex. 4, ECF No. 13-5
(Declaration of Adam Roberts, Senior Vice President of Born Free USA,
dated Nov. 11, 2008) ("Roberts Decl."), ¶¶ 7, 9, 11; DOW-Proposed
Intervenors' Reply to SCI Opp. to Mot. to Intervene, Ex. 6, ECF No.
21-2 (Declaration of Michael P. Senatore, dated January 3, 2102)
("Senatore Decl."). This monitoring activity is facilitated by the
requirement in ESA section 10(c) for the FWS to publish notice in the
Federal Register of each application for a permit and obtain comment
from interested parties and the public. See 16 U.S.C. § 1539(c).
Certain permit applications, such as for sport hunting of such
animals, prompt the organizations to inform their members and the
public about proposed governmental actions that would impact
endangered animals through various means, including electronic action
alerts, their websites, and various mailings. See, e.g., Feral Decl. ¶¶ 16-17, 20-22; Fascione Decl. ¶¶
7-13; Page Decl. ¶¶ 6-16; Slackman Decl. ¶¶ 6-8; Roberts Decl. ¶¶
10-11. These organizations and their members also routinely comment on
such actions to government agencies and legislative bodies. Id.
Finally, each of these organizations is committed to the conservation of endangered species. FOA is a "non-profit animal advocacy organization" with a mission to "cultivate a respectful view of nonhuman animals, free-living and domestic." Feral Decl. ¶ 3. Specifically, FOA seeks to intervene "because [SCI's] lawsuit directly threatens FoA' and its members' interests in protecting the three antelope species, and threatens to undo years of successful administrative and legal advocacy work." FOA Mem. in Supp. of Mot. to Intervene in SCI Action, at 1. DOW is "a national non-profit organization dedicated to the protection and restoration of all wild animals and plants in their natural communities," including the antelope species at issue. Fascione Decl. ¶ 2. With approximately 525,000 members nationwide, DOW advocates new approaches to wildlife conservation that protect endangered species and help keep other species from becoming endangered, and it employs education, litigation, research, legislation, and advocacy to defend wildlife and their habitat. Id. ¶¶ 4-8. The HSUS is a non-profit membership organization dedicated to protecting wild and domestic animals by actively opposing those projects, plans, and events that result in the killing or cruel treatment of animals. Page Decl.¶ 2. With approximately 11 million members, this organization seeks to inform the public about the perils animals regularly face and to address those problems with diverse tools. Id. ¶¶ 6-7; Slackman Decl. ¶ 5. The HSUS invests considerable resources in its effort to end the trophy hunting of threatened and endangered species in general, and the inhumane practice of canned hunting of threatened and endangered species in particular. See Page Decl. ¶ 8. Finally, Born Free USA focuses on ...