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Forest Service Employees for Environmental Ethics v. United States Forest Service

April 7, 2009

FOREST SERVICE EMPLOYEES FOR ENVIRONMENTAL ETHICS; ALLEGHENY DEFENSE PROJECT; SIERRA CLUB, PLAINTIFFS,
v.
UNITED STATES FOREST SERVICE, DEFENDANT.



The opinion of the court was delivered by: McLAUGHLIN, Sean J., J.

MEMORANDUM OPINION

This matter is before the Court upon the Motion for Leave to Intervene pursuant to Rule 24 of the Federal Rules of Civil Procedure filed by the Pennsylvania Oil and Gas Association and the Allegheny Forest Alliance.

I. BACKGROUND

In the underlying lawsuit, plaintiffs seek declaratory and injunctive relief against the United States Forest Service under the Administrative Procedure Act, 5 U.S.C. § 701 ("APA"), for alleged violations of the National Environmental Policy Act, 42 U.S.C. § 4321 ("NEPA"). Specifically, the plaintiffs allege in their complaint that the Forest Service violated NEPA by issuing "Notices to Proceed" to various oil and gas companies operating within the boundaries of the Allegheny National Forest ("ANF"). Plaintiffs contend that the Forest Service violated federal law by failing to prepare a "NEPA analysis" in order to determine the impact, if any, that issuing the Notices to Proceed would have on the environment prior to their issuance.

The proposed intervenors in this action are the Pennsylvania Oil and Gas association ("POGAM"), a non-profit trade association consisting of the Commonwealth's independent oil and gas producers, and the Allegheny Forest Alliance ("AFA"), a non-profit coalition of public school districts, municipalities, and businesses with interests affected by the welfare of the ANF. POGAM's membership includes, inter alia, corporations, individuals and other business entities that own oil and gas rights within the ANF. (Motion to Intervene, p. 4-5). As an organization, POGAM seeks to maintain an ongoing dialogue with state and federal agencies and commissions in order to ensure that oil and gas operations are not subject to undue regulatory constraints. (Id.) The other proposed intervenor, AFA, seeks to "promote and support sustainable development within the ANF," including sustainable forestry and environmental stewardship. (Id. at 5).

POGAM asserts that many of their members have easements for the use of the surface of the ANF that are dominant to the surface estate, giving those members the right to use the surface to develop oil and gas interests without the additional constraints and burdens that might be imposed upon their claimed estates by the preparation of a NEPA analysis. (Id. at 4). They contend that, because the Forest Service's ownership interest in the ANF is subservient to the mineral and oil rights of their members, the Forest Service lacks the discretion and authority to deny the exercise of mineral and oil rights or to require a NEPA analysis prior to authorizing such activities.

On December 26, 2008, POGAM and AFA filed a motion for leave to intervene pursuant to Federal Rules of Civil Procedure 24(a) and (b). The Forest Service does not oppose the motion. Plaintiffs, however, filed a brief in opposition on February 6, 2009. For the reasons that follow, the motion will be granted.

II. DISCUSSION

The proposed intervenors seek to intervene in this action based upon Federal Rule of Civil Procedure 24(a)(2), which provides for intervention as a matter of right, and Rule 24(b), which allows for permissive intervention. Rule 24(a)(2) provides in pertinent part:

(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action . . . (2) 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. Pro. 24(a)(2). The Third Circuit has interpreted Rule 24(a) to require proof of four elements from the party or parties seeking intervention: "first, a timely application for leave to intervene; second, a sufficient interest in the litigation; third, a threat that the interest will be impaired or affected, as a practical matter, by the disposition of the action; and fourth, inadequate representation of the prospective intervenor's interest by the existing parties to the litigation." Kleissler v. United States Forest Service, 157 F.3d 964, 969 (3rd Cir. 1998) (citing, e.g., Mountain Top Condo. Ass'n. v. Dave Stabbert Master Builder, Inc., 72 F.3d 361, 365-66 (3rd Cir. 1995)).

Plaintiffs concede that the application for leave to intervene is timely and, implicitly, that the proposed intervenors' interests (if established) would not be adequately represented by the existing parties. Plaintiffs dispute, however, that the proposed intervenors have set forth a direct, concrete, non-remote interest that will be affected by the lawsuit. In determining whether a sufficient interest in the litigation has been alleged, the Third Circuit has explained that:

[T]he polestar for evaluating a claim for intervention is always whether the proposed intervenor's interest is direct or remote. Due regard for efficient conduct of the litigation requires that intervenors should have an interest that is specific to them, is capable of definition, and will be directly affected in a substantially ...


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