15 - Motion to Intervene

MOTION TO INTERVENE BY CALIFORNIA CATTLEMEN’S ASSOCIATION, ET AL. – PAGE 1

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMERICAN WILD HORSE PRESERVATION CAMPAIGN, et al.,

Plaintiffs, v. THOMAS VILSACK, Secretary, U.S. Department of Agriculture, et al.,

Defendants,

and,

CALIFORNIA CATTLEMEN’S ASSOCIATION, 1221 H Street Sacramento, CA 95814 CALIFORNIA FARM BUREAU FEDERATION, 2300 River Plaza Dr Sacramento, CA 9833 PUBLIC LANDS COUNCIL, 1301 Pennsylvania Ave NW, Suite 300 Washington, DC 20004 NATIONAL CATTLEMEN’S BEEF ASSOCIATION, 9110 East Nichols Ave, Suite 300 Centennial, CO 80112 MODOC COUNTY, 204 S Court St, Suite 100 Alturas, CA 96101 WILLIAM FLOURNOY, P.O. Box 96 Likely, CA 96116 CAROLYN AND JAMES PETER CAREY, Carey Ranch, County Rd 54 (Residence) P.O. Box 1892 (Mailing) Alturas, CA 96101

Case No. 1:14-cv-485-ABJ

Case 1:14-cv-00485-ABJ Document 15 Filed 09/19/14 Page 1 of 19


MIKE BYRNE, 8340 County Road 114 Tulelake, CA 96134

Proposed Defendant-Intervenors

UNOPPOSED MOTION TO INTERVENE BY

CALIFORNIA CATTLEMEN’S ASSOCIATION, ET AL.

Proposed Defendant-Intervenors seek to intervene in this action to protect their interests

relating to the U.S. Forest Service’s management of wild horses in the Devil’s Garden Plateau

Wild Horse Territory (“WHT”), which is part of the Modoc National Forest (“MDF”) in northern

California. Counsel has conferred with government defendants and plaintiffs; neither oppose this

motion.1 Proposed Intervenors consist of individuals and groups involved in agriculture and

livestock production in the area: California Cattlemen’s Association, California Farm Bureau

Federation, Public Lands Council, National Cattlemen’s Beef Association, Modoc County, and

individual grazing permit holders William Flournoy, Carolyn and James Peter Carey, and Mike

Bryne. Proposed Intervenors and their members rely on Devil’s Garden WHT lands to graze

livestock; live, work on, and own lands adjacent to the WHT that are impacted by wild horses;

and recreate in the MDF.

The Devil’s Garden is the largest wild horse territory managed by the Forest Service—

comprising approximately 232,520 acres of federal land—3 percent of which is public land

administered by the Bureau of Land Management (“BLM”). For over a decade, horses have

1 Counsel for government defendants has asked that Proposed Intervenors will: (1) be limited to defending against claims asserted by Plaintiffs and not assert counterclaims against federal Defendants; (2) bear their own costs and not seek to recover fees or costs from the United States; (3) comply with the Court’s scheduling order setting forth deadlines for challenges to the administrative record (see ECF No. 12); and (4) be prohibited from introducing material outside the administrative record, unless such information falls within an exception to the record review appropriate in APA litigation. Proposed Intervenors agree to such conditions, but reserve the right to address claims made by plaintiffs or the government during litigation as necessary.



proliferated in excess of the WHT’s carrying capacity at the expense of other protected uses of

these public lands. Since 2002, wild horses have continuously exceeded their Appropriate

Management Level (“AML”) population range. The changes proposed in the Devil’s Garden

Territory Management Plan (“TMP”) Environmental Assessment (“EA”) outline a long-term

strategy to correct this imbalance.

The TMP addresses two changes to which Plaintiffs object. First, a boundary change to

correct an earlier administrative error that incorrectly included in the WHT lands used and/or

privately owned by the individual permittees who seek intervention here. Second, the TMP

proposes a new AML—i.e., a required population range—for the WHT. This AML was designed

by the Forest Service using monitoring data in order to restore an equitable balance of uses to the

Devil’s Garden area. Proposed Intervenors will be directly affected by the boundary correction,

which will allow them to use private and public rangeland that has been rendered nearly

unusable by wild horses. Proposed Intervenors have also been closely involved with the Forest

Service in developing the Devil’s Garden TMP, including the new data-driven AML, and will be

directly affected by a decision from this court as to its legality.

Due to these interests, Proposed Intervenors are entitled to participate in this case “as of

right” pursuant to Fed. R. Civ. P. 24(a). Alternatively, Proposed Intervenors request “permissive”

intervention pursuant to Fed. R. Civ. P. 24(b).

LEGAL AND FACTUAL BACKGROUND

1. Wild Horses, Livestock Grazing Permits, and Multiple Use Requirements on National Forest System Lands The Wild Free-Roaming Horses and Burros Act of 1971 (“WHA” or “Act”) places wild

horses on Forest Service land under the jurisdiction of the Secretary of Agriculture and imposes

a duty to “manage wild free-roaming horses and burros in a manner that is designed to achieve



and maintain a thriving natural ecological balance [(“TNEB”)] on the public lands.” 16 U.S.C.

§ 1333. The Act requires the Secretary to inventory the wild horse population, determine the

AML, determine whether there is overpopulation, and—if overpopulation exists—“immediately

remove excess animals from the range so as to achieve appropriate management levels.” 16

U.S.C. § 1333(b)(2). The wild horse population in the Devil’s Garden WHT has exceeded the

AML since 1993, requiring prompt action by the Forest Service to remove the excess animals in

order to achieve TNEB.2 After over a year of working closely with the Forest Service on a plan

to keep the horses within TNEB, Proposed Intervenors have supported the resulting AML

changes reflected in the Devil’s Garden TMP Environmental Assessment.

Several land use directives protect the rights of ranchers to use public lands. Explicit

authorization of grazing as an effective management tool for public lands has been recognized

since Gifford Pinchot, the first Chief of the U.S. Forest Service, authored the “The Use of the

National Forests” in 1907. Subsequent laws continue to protect grazing as a responsible use of

public lands, whether they are managed by BLM or the Forest Service.3

2 Am. Horse Protec. Ass’n v. Watt, 694 F.2d 1310, 1316 (D.C. Cir. 1982) (“Congress judged that prompt action was needed to redress the imbalance that had developed; it directed that excess horses should be removed expeditiously.”); id. at 319 (“To insist upon such a delay pending further study at this juncture . . . is inconsistent with the amended Act's mandate to the Secretary to “immediately” to remove excess horses once an overpopulation is determined to exist.”); In Def. of Animals v. U.S. Dept. of Int., 737 F. Supp. 2d 1125, 1132 (E.D. Cal. 2010) (“The Act goes on to unequivocally provide that if the current population inventory for an HMA reveals that overpopulation exists, and if the BLM determines that “action is necessary to remove excess animals,” it “shall immediately remove excess animals from the range so as to achieve appropriate management levels.”). 3 The Taylor Grazing Act of 1934 initially set out the grazing strategy for public lands owned by the BLM. Grazing on National Forest System lands is now memorialized, by contrast, by the Multiple-Use Sustained Yield Act of 1960 and the National Forest Management Act of 1976, which mandate diverse and balanced use of the forests—explicitly including livestock grazing—to develop renewable resources with the objective of long-term, sustained yield. Livestock grazing (and wild horses) on BLM and Forest Service lands are thus managed according to similar, but separate, sets of regulations. Compare 36 C.F.R. pt. 222, subpt. A (Grazing and Livestock Use on the National Forest System), with 43 C.F.R. pt. 4100 (BLM regulations).



In managing the national forests, the Forest Service must consider multiple uses,

including grazing rights, when it develops land and resource management plans. The Multiple-

Use Sustained-Yield Act (“MUSYA”) dictates that the national forests be administered for

various purposes, including grazing, recreational use, and wildlife. MUSYA requires that the

Forest Service utilize and make judicious use of forest resources to “best meet the needs of the

American people,” and to maintain a “high-level annual or regular periodic output” of those

renewable resources. 16 U.S.C. § 531(b). The National Forest Management Act (“NFMA”)

enforces the concept of “multiple use” by obligating the Forest Service to “balance” those

“competing demands.” 16 U.S.C. § 1607; id. §§ 528–531.

In pursuit of these multiple use and sustained yield requirements, the MDF developed the

TMP/EA to guide the management of horses within the Devil’s Garden WHT.

2. History of Devil’s Garden WHT Management, Involvement of Proposed Intervenors

It is the Forest Service’s position that a Territory Management Plan for the Devil’s

Garden WHT is a prerequisite for the agency to meet its obligation to remove excess horses from

those public lands. To speed the TMP’s development, Proposed Intervenors have invested

significant time and expense into supporting the Forest Service’s efforts to develop a plan to

address horse impacts in the Devil’s Garden WHT. Curtis Decl. ¶¶ 5–9. The EA explains well,

and dispassionately, the evolution of wild horse management since the WHT was designated

pursuant to the 1971 Wild Horses and Burros Act.

The MDF completed its first Land and Resource Management Plan (“LRMP”) in 1991,

establishing a population range (i.e., AML) for wild horses of 275–335 animals and allocating

4,400 animal unit months (“AUMs”) of forage for their use. For several years wild horses were

managed accordingly in conjunction with BLM, until procedural obligations and declining



resources made management more difficult. Since 1993, after a particularly severe winter

resulted in large horse casualties, the population of wild horses has continuously exceeded the

AML. Curtis Decl. ¶ 11. Since 2006, when the last helicopter-assisted gather was conducted,

actual use by wild horses has exceeded by 140%–369% of the forage allocated for their use. U.S.

FOREST SERVICE, ENVIRONMENTAL ASSESSMENT: DEVIL’S GARDEN PLATEAU WILD HORSE

TERRITORY MANAGEMENT PLAN (EA) at 10 (August 2013). Because the Forest Service

determined that further gathers to remove excess wild horses would not be authorized until the

MDF completed a Territory Management Plan, the Service began to develop the Plan and

corresponding EA.

Historically, the Forest Service gathered and cared for excess wild horses in tandem with

BLM contractors and trained specialists. The gathered horses were housed in BLM-managed

facilities. However, at the present time, BLM has insufficient short and long-term holding

capacity to care for any more horses from Forest Service land. As a result, the MDF has had to

pursue other alternatives to comply with the directives it has received from Forest Service

Region 5—namely, the development of a Territory Management Plan.

The MDF considered various options to complete the required TMP, but was precluded

from doing so by staff and funding limitations. Then in 2012, Forest Service Region 5 allocated

special funding for development of a TMP. To speed its completion, Modoc County Farm

Bureau (“MCFB”) and Modoc County (“County”) entered into a Challenge Cost Share

Agreement with the MDF. Curtis Decl. ¶ 8. Through this agreement, MCFB and the County

provided some of the funds and office space for the Forest Service to contract with retired federal

workers with expertise regarding the range and wild horses. Id. Those workers completed the

necessary work, which included gathering intensive range and riparian monitoring data to



supplement the annual monitoring data collected by the MDF. Id. The additional data allowed

specialists to rigorously evaluate population inventory and resource impacts to determine an

appropriate AML for the new TMP. Id. This is the first time the AML will be based on hard data.

The contracted specialists also worked with the MDF to develop a range of alternative

wild horse management options, analyze the potential environmental impacts associated with

each alternative, and prepare the appropriate NEPA review document for the Territory

Management Plan. Curtis Decl. ¶ 9. To fulfill its NEPA obligation, the MDF prepared the

Devil’s Garden EA, which analyzed four alternatives in detail: (1) Proposed Action, (2) No

Action, (3) Enhance Wild Horse Management, and (4) Sustain Current Wild Horse Numbers.

Seven additional alternatives were considered but dismissed from detailed study.

On August 27, 2013, the MDF issued a decision to implement the Territory Management

Plan, which would guide management of wild horses and their habitat within the Devil’s Garden

WHT over the next 15 to 20 years. The plan establishes an AML of 206–402 wild horses and

provides for periodic gathers to remove excess wild horses until the AML is achieved. The plan

also requires regular data collection to establish baseline genetic diversity and ensure continued

herd health. Once the AML is attained, fewer gathers would be needed and population

suppression methods can be used to decrease the number of excess animals that will need to be

removed over time.

Overpopulation of the Devil’s Garden WHT has been estimated by direct count and is

supported by biological research data concerning horse population growth rates. Aerial inventory

of the WHT was completed in February 2013, which estimated wild horse population at 1,260

adult wild horses. Assuming the average annual growth rate of 25% per year, the 2014

population is expected to be 1,575 adult wild horses. This projection is over 700% of the



recommended AML lower limit of 206 wild horses and nearly 400% of the upper limit. In

addition, an estimated 320 animals reside outside the WHT in locations not designated for their

long term use.

3. Interests of Proposed Intervenors

Plaintiffs’ suit poses a real threat to attaining balanced management of MDF rangelands,

for their success may preclude the AML adjustment and gather schedule. Further delay bears

directly on forest and range health, as well as the economic and social well-being of the ranchers

and local community that are dependent on the sustained production of those resources.

The Forest Service will not remove wild horses until the Territory Management Plan is

implemented. Until then, the impacts horses cause to range health will continue to injure the

grazing and private property rights of Proposed Intervenors and their members. See Gatlin Decl.

¶ 7; Flournoy Decl. ¶ 4; Carey Decl. ¶ 6; Van Liew Decl. ¶ 7; Byrne Decl. ¶ 4; Curtis Decl. ¶ 8;

Matteis Decl. ¶ 5. The most direct impact of wild horses is to curtail use of livestock grazing

permits for federal lands, which entitle permittees to a certain number of animal unit months

(“AUMs”) for livestock. An AUM is the amount of forage required for one month by one

“animal unit.” In the Devil’s Garden WHT and adjacent public lands, AUMs have been

substantially reduced or, in some cases, foregone altogether to avoid overutilization. Byrne Decl.

¶ 4; Carey Decl. ¶ 10; Flournoy Decl. ¶ 6–7. The cost of obtaining replacement pasture and

forage, estimated at $35 per AUM, can be significant. Byrne Decl. ¶ 6. Permittees have also

reduced cattle numbers on their own private lands, where many of the wild horses trespass and

congregate due to overflow from the WHT. Byrne Decl. ¶¶ 5-6; Carey Decl. ¶¶ 6, 10.

In addition to consuming available forage, horses damage other range resources; they

trample water holes, deplete public and private water rights, and destroy permittee-maintained



improvements like fencing and water tanks. Byrne Decl. ¶¶ 4–5, 7; Carey Decl. ¶¶ 3, 10;

Flournoy Decl. ¶ 8; Van Liew Decl. ¶ 17. Wild horse herds cause similar impacts when they

stray onto private lands like the Avanzino Ranch owned and operated by the Careys (part of

which was incorrectly included as part of the WHT), or private lands adjacent to the WHT

owned by Mike Byrne. In such circumstances, the Act clearly mandates that the Secretary “shall

arrange to have the animals removed” from private lands. 16 U.S.C. § 1334; Roaring Springs

Assocs. v. Andrus, 471 F. Supp. 522, 525 (D. Or. 1978) (“The statute imposes a duty on the

Secretary to remove wild horses and burros from private land upon notice from private

landowners. It does not qualify private landowners or their land in any way. The duty extends to

all private landowners who have wild horses and burros stray upon their land.”)

Impacts to the health of public rangelands from overpopulation are also severe. For

example, the range suffers from invasive species encroachment due to the tendency of horses to

over-utilize native perennial grasses and trample areas around watering holes. Matteis Decl.

¶¶ 10–11. Much of the Emigrant Springs Allotment in the Devil’s Garden WHT has converted

from native grasses to medusa head, an invasive annual grass. EA at 12. In addition to providing

lower quality forage and habitat, invasive annual grasses may also pose a greater risk of fire on

the range, which can spread to surrounding private lands. Matteis Decl. ¶¶ 10, 11; Flournoy

Decl. ¶ 8. Medusa head is also currently moving north into the Pine Springs and the Big Sage

Allotments, jeopardizing habitat quality for wildlife, livestock, and wild horses in the long-term.

EA at 12–13; Flournoy Decl. ¶ 8. Similar damage has occurred recently around the Boles Tank

watering area in the Carr Allotment, resulting in a high percentage of bare ground, increased

erosion, poor plant vigor, and the loss of key perennial grasses such as One-Spike Oatgrass. EA

at 13; Flournoy Decl. ¶ 8.



The abovementioned impacts to range health are a direct result of the year-round,

uncontrolled use by wild horses of the public rangelands inside and beyond the WHT. Grazing

permittees are directly affected by these impacts. Permittee Mike Byrne has been precluded

entirely from grazing cattle on one of the pastures of the Carr Allotment for two of the last four

years. Byrne Decl. ¶ 3. The Boles Tank watering area of the Carr Allotment where Byrne grazes

livestock, for instance, has been known to support 150 or more horses, leading to the impacts

discussed above. Carey Decl. ¶ 9. About 140 horses currently occupy the Big Sage Allotment.

Flournoy Decl. ¶ 6. The two permittees with adjacent private lands have significant numbers of

horses regularly on their private land as well. Byrne Decl. ¶¶ 5, 6 (estimating 35-50 horses);

Carey Decl. ¶ 3 (estimating 30-100 horses).

Damage to fences and watering holes caused by wild horses is also a significant

economic burden on Proposed Intervenors. Maintenance of improvements on public lands is a

cost borne by the permittee. See Carey Decl. ¶¶ 7–8; Flournoy ¶ 8. Costs for fencing, for

instance, can mount significantly over time when hundreds of feet of fences are brought down

every year by horses that spill over from the WHT onto private and non-WHT public lands.

Carey Decl. ¶¶ 7, 8. Carolyn and Pete Carey have also collaborated with the Natural Resources

Conservation Service (“NRCS”) to establish a Wetlands Reserve Program Grazing Plan

easement on portions of their private property on the Avanzino Ranch to restore and maintain

wildlife habitat. Id. ¶ 6. Because wild horses tend to destroy riparian habitat for migratory and

resident waterfowl, the NRCS easement precludes wild horses from being on those portions of

the property. Id. If wild horses continue to exceed the carrying capacity of the WHT and wander

onto these easement lands, the Careys risk losing the easement and significant compensation for

meeting its various requirements. See id.



The two issues challenged by plaintiffs (boundary modification and AML) would both

help remedy these impacts. If horse numbers were at or below AML, the range would be in

better health and few horses would wander onto lands where they do not belong—public or

private—to cause these types of impacts. Fixing the incorrect boundary for the WHT will also

recognize the private property rights and proper character of non-WHT public lands, resulting in

fewer impacts to those non-WHT lands.

The modifications contained in the challenged TMP, including the AML reduction and

boundary modification, are a major and necessary step to sustaining healthy rangeland in the

MDF and the Devil’s Garden WHT. As parties with a direct stake in the outcome of this case,

Proposed Intervenors are entitled to intervene as a matter of right under Fed. R. Civ. P. 24(a),

and accordingly seek intervention in all phases of this litigation. Alternatively, Proposed

Intervenors seek permissive intervention under Fed. R. Civ. P. 24(b).

ARGUMENT

1. Proposed Intervenors Are Entitled to Intervene As a Matter of Right

Fed. R. Civ. P. 24(a) provides:

Upon 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 . . . is so situated that the disposition 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.

To satisfy Rule 24(a), intervenors must satisfy four elements: “(1) the application to intervene

must be timely; (2) the applicant must demonstrate a legally protected interest in the action; (3)

the action must threaten to impair that interest; and (4) no party to the action can be an adequate

representative of the applicant's interest.” SEC v. Prudential Sec. Inc., 136 F.3d 153, 156 (D.C.

Cir. 1998).



Practical considerations are to guide courts in using this test. See Fed. R. Civ. P. 24,

Advisory Comm. Notes to 1966 Amendment. While some D.C. Circuit decisions have required

intervenors to demonstrate Article III standing, In Re Endangered Species Act Section 4

Deadline, 704 F.3d 972 (D.C. Cir. 2013), in general, “the D.C. Circuit has taken a liberal

approach to intervention.” Wilderness Society v. Babbitt, 104 F. Supp. 2d 10, 18 (D.D.C. 2000).

Relaxed standards for the standing inquiry may be appropriate where procedural rights are at

issue, as is the case here. 704 F.3d at 976–77 (citing Lujan v. Defenders of Wildlife, 504 U.S.

555, 572). Regardless, applicants satisfy each of the elements required by Rule 24(a) for

intervention and have concrete interests that give them standing to participate in this case.

A. Applicants’ Motion for Intervention is Timely

In judging the timeliness of a motion to intervene, the court must consider “all the

circumstances, especially weighing the factors of time elapsed since the inception of the suit, the

purpose for which intervention is sought, the need for intervention as a means of preserving the

applicant’s rights, and the probability of prejudice to those already parties in the case.” United

States v. British Am. Tobacco Austl. Serv., 437 F.3d 1235, 1238 (D.C. Cir. 2006) (quoting United

States v. Am. Tel. & Tel. Co., 642 F.2d 1285, 1295 (D.C. Cir. 1980)).

Applicants’ motion to intervene is timely because this case is in its earliest stages. The

Plaintiff’s complaint was filed on March 24, 2014, and the administrative record was made

available to the Plaintiffs on August 4, 2014. Plaintiff’s motion for Summary Judgment is not yet

due to be filed until November 17, 2014—nearly two months from now. Granting applicants

Defendant-Intervenor status would neither delay this litigation nor prejudice any party to the

case. Thus, this motion is timely.



B. Intervenor Applicants Have an Interest in the Subject of This Action

Under Rule 24(a), an applicant for intervention must have “an interest relating to the

property or transaction that is the subject of the action.” This is not a rigid standard but “a

practical guide to disposing of lawsuits by involving as many apparently concerned persons as is

compatible with efficiency and due process.” Nuesse v. Camp, 385 F.2d 694, 700 (D.C. Cir.

1967); see also Friends of Animals v. Kempthorne, 452 F. Supp. 2d 64, 69 (D.D.C. 2006). An

intervenor-applicant need not demonstrate a specific legal or equitable interest at risk but only a

“protectable interest of sufficient magnitude to warrant inclusion in the action.” Smith v.

Pangilinan, 651 F.2d 1320, 1324 (9th Cir. 1981); see also Friends of Animals, 452 F. Supp. 2d at

69 (“[P]roposed intervenors of right ‘need only an interest in the litigation – not a cause of action

or permission to sue.’”) (citation omitted).

Proposed Intervenors have a protectable interest in this action. As noted above, Proposed

Intervenors consist of national and regional organizations with longstanding interests in the

rights of grazers (and whose individual members graze livestock in and adjacent to the Devil’s

Garden WHT); a local county; and two individual permittees who graze cattle on private and

public lands impacted by wild horse overpopulation in the Devil’s Garden. Proposed Intervenors

currently suffer reduced ability to fully utilize their grazing permits on public lands in and

adjacent to the WHT, and have suffered similar impacts to their private lands. See Gatlin

Decl. ¶ 7; Flournoy Decl. ¶¶ 6–7; Carey Decl. ¶¶ 6-10; Van Liew Decl. ¶¶ 7, 12, 17–18; Byrne

Decl. ¶ 4; Curtis Decl. ¶ 8; Matteis Decl. ¶ 5. Proposed Intervenors and their members will

benefit from implementation of the TMP and the administrative correction of the WHT

boundary, to which Plaintiffs object. Proposed Intervenors will continue to be negatively affected

by wild horse impacts if Plaintiffs’ case succeeds.



Proposed Intervenors’ ability to utilize public and private lands is not an academic

question. Livestock grazers depend on public lands within the Modoc National Forest, including

land inside the Devil’s Garden WHT, for their livelihood. Allotted AUMs are a significant

source of forage for livestock, and finding replacement pasture to graze in is time-consuming and

expensive. Byrne Decl. ¶ 6; Flournoy Decl. ¶ 9 (noting forage from Modoc Forest public lands

accounts for as much as 50% of the permittee’s needs under optimal conditions ). The two

named permittees (Mike Byrne; Carolyn and Pete Carey), other ranchers, and many Modoc

County residents also depend on private land adjacent to the MDF and the WHT, upon which

wild horses have increasingly trespassed as the area’s carrying capacity is exceeded by ever

greater numbers. Resource damage on public lands is mirrored on adjacent private lands.

Wild horse overpopulation also impacts the community as a whole. As AUMs are

reduced to accommodate degraded resource conditions, taxes and grazing fee revenues that help

fund County programs and infrastructure are also reduced. Curtis Decl. ¶¶ 12–13. Further, range

health deficiencies caused by excess horses devalue the public lands as wildlife habitat and allow

invasive annual grasses to spread, leading to greater fire risk and lesser value forage. Matteis

Decl. ¶¶ 10–11. Due to the proximity and interconnectivity of public and private lands in the

rural Modoc County community, many private landowners contribute significantly to protecting

and enhancing wildlife resources that benefit sportsmen, outdoor and wildlife enthusiasts, and

many others that enjoy the Modoc Forest and the Devil’s Garden WHT. Matteis Decl. ¶ 13.

Success in maintaining the character of these lands will ultimately depend on maintaining the

character of both these public and private lands in the vicinity of the Devil’s Garden area.



Participation in this case will allow Proposed Intervenors to make arguments on behalf of

these interests and to explain the damage Plaintiffs’ claims could cause to the environment,

private property owners, and grazing interests on public lands.

C. Resolution of This Case May Impair the Interests of Proposed Intervenors

An applicant for intervention under Rule 24(a) must be “so situated that the disposition of

the action may as a practical matter impair or impede the applicant’s ability to protect that

interest.” Fed. R. Civ. P. 24(A) (emphasis added). In applying this requirement, the Court should

“look[] to the ‘practical consequences’ of denying intervention.” Fund for Animals v. Norton,

322 F.3d 728, 735 (D.C. Cir. 2003). This inquiry “is not limited to consequences of a strictly

legal nature.” Forest Conservation Council v. U.S. Forest Service, 66 F.3d 1489, 1498 (9th Cir.

1995) (quoting Natural Res. Def. Council v. Nuclear Regulatory Comm’n, 578 F.2d 1341, 1345

(10th Cir. 1978)).

The above-stated interests of Proposed Intervenors are, at root, tied to the appropriate

AML for wild horses, the boundary modification, and subsequent proposed gathers designed to

achieve wild horse population numbers within the carrying capacity of the Devil’s Garden WHT.

Gatlin Decl. ¶ 7. The appropriateness of the measures prescribed by the TMP and corresponding

EA to achieve population reduction is the principal issue raised by Plaintiffs in this case.

Proposed Intervenors have an interest in upholding those measures, without which ecological

damage to the range and forest will continue, preventing the exercise of grazing permit rights and

harming not just those who depend on the use of resources from the MDF, but all residents of

Modoc County. Curtis Decl. ¶¶ 8–20.



D. Existing Parties Will Not Adequately Represent Proposed Intervenors’ Interests

An applicant for intervention as of right must show that its interests may not be

adequately represented by the existing parties. This requirement is satisfied by a showing that the

representation of the applicant’s interests “may be” inadequate, “and the burden of making that

showing should be treated as minimal.” Trbovich v. United Mine Workers, 404 U.S. 528, 538

n.10 (1972) (involving, as here, proposed intervenors on side of federal defendant). This

requirement is “not onerous.” Diamond v. District of Columbia, 792 F.2d 179, 192 (D.C. Cir.

1986)). An applicant “ordinarily should be allowed to intervene unless it is clear that the party

will provide adequate representation for the absentee.” Am. Tel. & Tel. Co., 642 F.2d at 1293.

The D.C. Circuit has “often concluded that governmental entities do not adequately represent the

interest of aspiring intervenors.” Fund for Animals, 322 F.3d at 726 (citing Natural Res. Defense

Council v. Costle, 561 F.2d 904, 912–13 (D.C. Cir. 1977); Smuck v. Hobson, 408 F.2d 175, 181

(D.C. Cir. 1989)); see People for the Ethical Treatment of Animals v. Babbitt, 151 F.R.D. 6

(D.D.C. 1993).

Here, neither Plaintiffs nor federal Defendants adequately represent Proposed

Intervenors’ interests. Plaintiffs seek to strike down portions of the TMP that will benefit

Proposed Intervenors. Federal Defendants, by contrast, represent the public at large and cannot

be expected to make all the same arguments as Proposed Intervenors would or represent their

private interests or the narrower public interest of the Modoc County community.

2. Applicants Meet the Permissive Intervention Standard

As detailed above, applicants meet the requirement for intervention as of right under Fed.

R. Civ. P. 24(a). Should the Court deny Rule 24(a) intervention, however, Proposed Intervenors

request leave to intervene permissively under Rule 24(b). Permissive intervention is appropriate



when an applicant’s timely defense “shares a question of law or fact in common with the

underlying action and if the intervention will not unduly delay or prejudice the rights of the

original parties.” Acree v. Republic of Iraq, 370 F.3d 41, 49 (D.C. Cir. 2004).

Proposed Intervenors seek to defend the thoughtful administrative decisions that are

designed to restore a balance of uses to the Modoc National Forest. Accordingly, they assert

arguments that share questions of law and fact with the underlying action and meet the standard

for permissive intervention.

As organizations representing grazing and public lands users, as well as a local

government and individual grazing permittees on Devil’s Garden WHT and adjacent Modoc

National Forest lands, Proposed Intervenors have an interest in the protection, use, and

enjoyment of public lands in the Modoc National Forest. As citizens, they also have an interest in

a valid interpretation of the WHBA. Proposed Intervenors are also landowners affected by the

Devil’s Garden WHT horse overpopulation issues and the MDF’s management decisions to

which Plaintiffs object. Further, the permittees have protectable legal interests in both the public

and private lands adjacent to the WHT—lands that provide renewable resources that that are

owned or managed by the permittees, and upon which they depend to make a living.

Given that this case is in its earliest stage, intervention will not unduly delay its resolution

nor prejudice the existing parties. In light of the national importance of the issues presented, the

deep and longstanding involvement that Proposed Intervenors have had in the protection and

sound management of the public lands at issue in this case, Proposed Intervenors respectfully

request that the Court grant them permissive intervention.



CONCLUSION

For the reasons set forth above, Proposed Intervenors request that this Court grant them

intervention as of right pursuant to Fed. R. Civ. P. 24(a) or, in the alternative, allow for

permissive intervention under Fed. R. Civ. P. 24(b).

Respectfully submitted this 19th day of September, 2014.

/s/ Paul B. Smyth Paul B. Smyth, DCB No. 217166 [email protected] 700 Thirteenth Street NW, Suite 600 Washington, DC 20005 Phone: (202) 654-6251 Fax: (202) 654-9151 /s/ Caroline Lobdell Caroline Lobdell, OSB No. 021236 (PHV forthcoming) [email protected] Aaron Bruner, OSB No. 133113 [email protected] Western Resources Legal Center 5100 S.W. Macadam Ave., Suite 350 Portland, OR 97239 Phone: (503) 222-0628 Fax: (503) 222-3255 Attorneys for Proposed Defendant-Intervenors



CERTIFICATE OF SERVICE

I hereby certify that on September 19, 2014, I will electronically file the foregoing “Unopposed

Motion to Intervene by California Cattlemen’s Association, et al.” with the Clerk of the Court

using the CM/ECF system, which will then send a notification of such filing to all counsel of

record.

/s/ Paul B. Smyth Paul B. Smyth


Documents

15 - Motion to Intervene