united states district court for the …a delaware limited partnership, and ... attempt to intervene...

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PLAINTIFFS’ OPPOSITION TO MOTION TO INTERVENE

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

SIERRA CLUB, INC., CLEAN ENERGY

FUTURE OKLAHOMA, and EAST TEXAS

SUB REGIONAL PLANNING COMMISSION,

Plaintiffs,

v.

LIEUTENANT GENERAL THOMAS P.

BOSTICK (in his official capacity as

Commanding General and Chief of Engineers of

the U.S. Army Corps of Engineers), MAJOR

GENERAL MICHAEL J. WALSH (in his

official capacity as U.S. Army Commanding

General for Civil and Emergency Operations),

COLONEL MICHAEL TEAGUE, (in his

official capacity as Tulsa District Commander of

the U.S. Army Corps of Engineers), COLONEL

CHRISTOPHER W. SALLESE, (in his official

capacity as Galveston District Engineer of the

U.S. Army Corps of Engineers), and UNITED

STATES ARMY CORPS OF ENGINEERS,

Defendants,

TRANSCANADA KEYSTONE PIPELINE, LP,

a Delaware limited partnership, and

TRANSCANADA CORPORATION, a

Canadian public company,

Intervenors.

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) Case No. Civ. 5:12-cv-00742

) Judge David L. Russell

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PLAINTIFFS’ OPPOSITION TO MOTION OF INTERSTATE NATURAL GAS

ASSOCIATION OF AMERICA ET. AL. TO INTERVENE

On July 30, 2012, four days before the hearing on Plaintiffs’ Motion for

Temporary Restraining Order and Preliminary Injunction, four utility and natural gas

Case 5:12-cv-00742-R Document 49 Filed 08/01/12 of 11

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trade associations and a group of energy companies (hereinafter collectively Interstate

Natural Gas Association of America or “INGAA”) have moved to intervene. Their

attempt to intervene into the TRO/PI proceedings should be denied as untimely.

Their intervention overall should be denied because they have not shown

inadequate representation by the existing defendants and intervenors, namely the U.S.

Corps of Engineers and TransCanada Keystone Pipeline LP and TransCanada

Corporation. The former is the federal agency that issued Nationwide Permit 12 (NWP

12) and the authorizations of the Gulf Coast Pipeline, and the latter is the applicant and

permittee of the pipeline. The new proposed intervenors INGAA have not identified a

single legal or factual position that they would take that would not be taken in this

litigation by the existing parties. INGAA does not allege any divergence of opinion on

this case or litigation strategy between it and the Corps or TransCanada. Therefore, their

intervention would burden the Court and the existing parties with duplicative and

unnecessary pleadings, briefs and arguments and should be denied. However, if this

Court does grant the motion to intervene, Plaintiffs ask the Court to preserve judicial

resources and prevent redundant filings by limiting the intervention as described below.

I. INGAA HAS NOT MET THE REQUIREMENTS FOR

INTERVENTION AS OF RIGHT

An applicant to intervene as of right pursuant to Rule 24 must demonstrate: (1) the

application is timely; (2) the applicant “claims an interest relating to the property or

transaction that is the subject of the action”; (3) the applicant’s interest “may as a

practical matter” be impaired or impeded; and (4) the applicant's interest is not


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adequately represented by existing parties. Fed. R. Civ. P. 24(a); see also San Juan

County, Utah v. United States, 503 F.3d 1163, 1188 (10th Cir. 2007) (en banc).

A. INGAA’s Intervention in the TRO/PI Proceedings is Not Timely

Plaintiffs’ Complaint was filed on June 29, 2012. TransCanada filed their motion

to intervene nine days after the Complaint. Plaintiffs did not object to TransCanada’s

intervention and the Court allowed it.

By contrast, proposed intervenor INGAA waited 30 days before filing its motion

to intervene, a scant four days before the scheduled hearing on Plaintiffs’ Motion for

Temporary Restraining Order and Preliminary Injunction. INGAA’s motion comes after

the parties agreed on a briefing schedule and page limits on Plaintiffs’ Motion for

TRO/PI, which was made the order of the Court. INGAA’s intervention at this point

would upset that agreement and order and involve additional last minute briefing and

surprise for the Court and the parties. It would greatly increase the burden on the Court,

Plaintiffs and the other parties in the TRO/PI proceedings, and consequently INGAA

should not be heard in opposition to Plaintiffs’ motion or at the hearing.

Moreover, Plaintiffs do not seek a TRO or preliminary injunctive relief against

any construction or pipeline other than TransCanada’s Gulf Coast Pipeline. Thus,

INGAA’s interests are not at stake in the relief sought in the TRO/PI motion and it should

not be heard at this hearing.


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B. INGAA Cannot Support Intervention by Proposing to Introduce

Extraneous Evidence or Arguments into This Record Review Case

This case is a challenge to the Corps’ 2012 issuance of NWP 12 as contrary to the

Clean Water Act (CWA) and as being based on an insufficient analysis under the

National Environmental Policy Act (NEPA). The cause of action is based on the

Administrative Procedure Act (APA), 5 U.S.C. § 706(2)(A), contending that the Corps’

action was arbitrary and capricious, an abuse of discretion or otherwise not in accordance

with law. As such, this case will be based on the Court’s review of the Administrative

Record, which is to be submitted by the Corps. In such cases, “[i]t is well-established

that an agency’s action must be upheld, if at all, on the basis articulated by the agency

itself.” Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1575 (10th Cir. 1994)

(quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Ins. Co., 463 U.S. 29, 50 (1983)).

Consequently, “the focal point for judicial review should be the administrative record

already in existence, not some new record made initially in the reviewing court.” Camp

v. Pitts, 411 U.S. 138, 142 (1973). See also National R.R. Passenger Corp. v. Boston &

Me. Corp., 503 U.S. 407, 420 (1992) (stating that it is well settled that a court may not

uphold an agency action on grounds not relied on by the agency). “The grounds upon

which an administrative order must be judged are those upon which the record discloses

that its action was based.” Alameda Water & Sanitation Dist. v. Browner, 9 F.3d 88, 91

(10th Cir. 1993) (quoting SEC v. Chenery, 318 U.S. 80, 87 (1943)). Agencies may not

rely upon post hoc rationalizations from counsel to support agency decisions. Utahns for

Better Transp. v. U.S. Dept. of Transp., 305 F.3d 1152, 1165 (10th Cir. 2002). Still less


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may an agency rely on post hoc arguments offered by private party intervenors such as

INGAA. The Corps is capable of arguing the adequacy of the record and its action and

any evidence by INGAA on these issues necessarily would be duplicative or extraneous.

The Tenth Circuit has denied intervention to applicants seeking to muddy a court’s

review of the agency record by injecting arguments or explanation not made by the

agency itself. In Alameda Water, the Tenth Circuit described conservation intervenors as

proposing “to participate in the lawsuit so that it can offer additional reasons for

upholding the denial of the permit” by the U.S. Environmental Protection Agency (EPA).

Alameda Water, 9 F.3d at 91. The Alameda court ruled that the evidence proposed

intervenors proffered:

would be irrelevant in the district court where the only issue is whether,

when confined solely to the reasons cited in the administrative record, the

EPA lawfully vetoed the … permit. The opportunity to offer extraneous

evidence beyond the administrative record, and thus beyond the scope of

the narrow issue before the district court, is not an interest protectable in the

underlying action.

Id. See also San Juan County, 503 F.3d at 1203 (en banc court finding the denial

of intervention in Alameda Water consistent with the en banc court’s interpretation of the

interest requirement under Rule 24); Friends of the Wild Swan, Inc. v. U.S. Fish &

Wildlife Serv., 896 F. Supp. 1025, 1027 (D. Ore. 1995) (citing Alameda Water and

concluding: “Because the Intervenors’ merely seek to interject their interests and

concerns, outside of the administrative record, in defense of the USFWS’s decision, they

do not have legally protectable interests at this stage in this litigation.”).


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The Alameda Water decision is controlling here and mandates denial of INGAA’s

motion. Despite INGAA’s bald assertions, it cannot possibly be best postured to answer

whether the Corps’ explanation of the agency’s actions was proper, incomplete, or

arbitrary and capricious. The Corps made the decisions at issue in this case and those

decisions must rise or fall on the agency’s rationale. INGAA is not free to come up with

new rationalizations or post hoc arguments, neither of which are admissible in this action.

Moreover, to the extent INGAA hopes to manufacture new arguments or proffers new

evidence, its actions are likely to bog down the proceedings in this case, causing parties

to file motions to go outside the record, motions to strike, and the like.

C. INGAA Has Not Demonstrated Inadequate Representation

If an applicant’s interest is adequately represented by existing parties, it is not

entitled to intervene. City of Stilwell, Okla. v. Ozarks Rural Elec. Co-op. Corp., 79 F.3d

1038, 1042-43 (10th Cir. 1996). This requirement serves to prevent intervenors with

identical interests from needlessly complicating or delaying litigation. The proposed

intervenor “bears the burden of showing inadequate representation,” Utah Ass’n of

Counties v. Clinton, 255 F.3d 1246, 1254 (10th Cir. 2001) (quotation and citation

omitted), and must give specific reasons why an existing party’s representation is not

adequate. Kiamichi R.R. Co. v. Nat’l Mediation Bd., 986 F.2d 1341, 1345 (10th Cir.

1993). INGAA has failed to carry this burden.

The Tenth Circuit presumes representation to be adequate when “the objective of

the applicant for intervention is identical to that of one of the parties.” Coalition of

Arizona/New Mexico Counties for Stable Economic Growth v. Dep’t of Interior, 100


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F.3d 837, 845 (10th Cir. 1996) (internal quotation omitted). INGAA shares the same

goal as the Corps and TransCanada in this case: to defend the agency’s NWP 12. In

addition, TransCanada’s and INGAA’s economic interests are generally aligned in this

case. As a result, representation is presumed adequate. See City of Stilwell, 79 F.3d at

1042-43.

INGAA does not allege any divergence of opinion on this case or litigation

strategy between it and the Corps or TransCanada. INGAA does not suggest that the

Department of Justice “is dragging its heels in defending [the agency] or is prepared to

sell out [the agency] for the sake of some competing interest of the United States.” Solid

Waste Agency v. U.S. Army Corps of Engineers, 101 F.3d 503, 508 (7th Cir. 1996).

Intervenors can make a case more difficult to administer. Solid Waste Agency,

101 F.3d at 508. For this reason, courts recognize that Rule 24 must be applied in a

manner “compatible with efficiency.” Coalition of Arizona/New Mexico Counties for

Stable Economic Growth, 100 F.3d at 841 (internal quotation marks omitted). INGAA

should not be allowed to intervene based on unsupported speculation about how the

federal government or TransCanada may litigate this case.

II. THIS COURT SHOULD DENY INGAA’s ALTERNATIVE REQUEST FOR

PERMISSIVE INTERVENTION

INGAA seeks, in the alternative, permissive intervention pursuant to Rule 24(b).

Even if it met all of the requirements for permissive intervention, this Court should

exercise its discretion to deny intervention. City of Stilwell, 79 F.3d at 1043 (whether to

grant or deny permissive intervention is within the district court’s discretion). INGAA


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will add little to the litigation; and, as shown above, what it does seek to contribute

appears calculated to distract the Court from the Corps’ explanation for the basis for its

decision, which is the only relevant issue on the merits. Although Plaintiffs ask the Court

to vacate NWP 12 as unlawful, and declare that it may not issue without a valid NEPA

analysis, Plaintiffs do not seek a nationwide injunction on activities under NWP 12, much

less any injunction on existing activities by INGAA. Plaintiffs limit their injunctive relief

request to the Gulf Coast Pipeline and thus INGAA has no immediate interest in the

remedy phase of these proceedings. In sum, INGAA is likely to place additional,

unnecessary burdens on the parties and this Court and for that reason alone, permissive

intervention should be denied.

III. IF THIS COURT GRANTS INTERVENTION, IT SHOULD LIMIT

INGAA’s PARTICIPATION

If this Court finds that INGAA may intervene, this Court should exercise its

authority to limit INGAA’s intervention. “[I]ntervention of right under the amended rule

may be subject to appropriate conditions or restrictions responsive among other things to

the requirements of efficient conduct of the proceedings.” Fed. R. Civ. P. 24 Advisory

Committee Notes (1966 Amendment). Limiting intervention for reasons of judicial

efficiency has become “a firmly established principle” in the federal courts. Beauregard,

Inc. v. Sword Servs., LLC, 107 F.3d 351, 352-53 (5th Cir. 1997). See also Trbovich v.

United Mine Workers of America, 404 U.S. 528, 537 (1972) (limiting union member’s

intervention to specific legal claims); San Juan County, 503 F.3d at 1189 (recognizing

Rule 24 permits “limitations on the scope of intervention”).


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In the interest of preserving judicial economy, this Court should take the approach

the court did in similar situations in Colorado Environmental Coalition v. Kempthorne,

Nos. 09-cv-85-AP (May 11, 2009) and 08-cv-1460-AP (Sept. 25, 2008), which are

exhibits 1 and 2 hereto. There the Court allowed intervention of an oil and gas company

and the American Petroleum Institute, respectively, but recognized their participation

should be limited “in the interest of the efficient conduct of the proceedings.” The Court

required the intervenor to confer with Federal Defendants before filing any motion,

responsive filing, or brief to determine whether they intended to assert the same

arguments. The intervenor was only allowed to file briefs “to raise arguments or issues

Defendants decline to include in their filings,” and was required to file a “Certificate of

Compliance” with any filing assuring the Court that it has complied with these

requirements. Adopting such conditions here will allow INGAA to raise any arguments

unique to it while relieving the Court and Plaintiffs of the burden of wading through

redundant filings.

CONCLUSION

For the reasons set forth above, INGAA’s motion to intervene should be denied.

In the event that the Court grants intervention, that intervention should be limited to

preserve the Court’s and the parties’ resources.


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DATED: August 1, 2012 Respectfully submitted,

s/ Douglas Hayes

DOUGLAS HAYES, Colo. Bar No. 39216

ERIC E. HUBER, Colo. Bar No. 40664

Sierra Club

1650 38th

Street, Suite 102W

Boulder, Colorado 80301

Telephone: (303) 449-5595

Facsimile: (303) 449-6520

Email: [email protected]


DEVORAH ANCEL, Cal. Bar No. 261038

Sierra Club

85 Second Street, 2nd Floor

San Francisco, CA 94105

Telephone: (415) 977-5709

Facsimile: (415) 977-5793


G. STEVEN STIDHAM, OBA No. 8633

Sneed Lang Herrold

1700 Williams Center Tower I

One West Third Street

Tulsa, OK 74103-3522

Telephone: (918) 588-1313

Facsimile: (918) 588-1314


Attorneys for Plaintiffs


mailto:[email protected]



tel:%28918%29%20588-1313

tel:%28918%29%20588-1314


CERTIFICATE OF SERVICE

I hereby certify that on August 1, 2012, a true and correct copy of the foregoing

Plaintiffs’ Opposition to Motion of Interstate Natural Gas Association of America et. al.

to Intervene was served electronically through the ECF system on all registered counsel.

s/ Douglas Hayes

DOUGLAS HAYES


IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLORADO

Judge John L. Kane

Civil Action No. 09-cv-85-AP

COLORADO ENVIRONMENTAL COALITION, et al.,

Plaintiffs,v.

DIRK KEMPTHORNE, et al.,

Defendants, and

SHELL FRONTIER OIL & GAS INC.,

Applicant for Intervention as Defendant.__________________________

Civil Action No. 09-cv-00091-AP

COLORADO ENVIRONMENTAL COALITION, et al.,

Plaintiffs,

v.

KEN SALAZAR, Secretary of the Interio, in his official capacity,

Defendants, and

AMERICAN PETROLEUM INSTITUTE,

Applicants for Intervention as Defendant.

ORDER

Kane, J.

Plaintiffs in the above-captioned actions challenge oil shale regulations promulgated by

the Bureau of Land Management as part of Congress’s directive in the Energy Policy Act of

Case 1:09-cv-00085-JLK Document 23 Filed 05/11/2009 Page 1 of 2Case 5:12-cv-00742-R Document 49-1 Filed 08/01/12 Page 1 of 2

Amber Williams

Text Box

Exhibit 1

Amber Williams

Stamp

Amber Williams

Sticky Note

Unmarked set by Amber Williams

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2005 to develop a commercial oil shale development program on federal lands. Shell Frontier

Oil & Gas Inc. (“Shell”) moves in both cases to intervene as an interested party under Fed. R.

Civ. P. 24(a)(2) or (b)(1)(B). The American Petroleum Institute (API) moves in 09-cv-91-AP to

intervene under those same alternative rule provisions.

After considering carefully the briefs and arguments of all of the parties for and against

intervention, and applying the legal standards set forth by the Tenth Circuit in San Juan County,

Utah v. United States, 503 F.3d 1163, 1188 (10th Cir. 2007)(en banc), I am persuaded to grant

both Motions, but on the condition that all filings and briefs by Shell and API as Intervenors be

consolidated. Plaintiffs and Defendants, too, SHALL FILE CONSOLIDATED BRIEFS.

Differences in arguments or positions among the individual members of the consolidated party

groups may be stated in the consolidated briefs. Except for reasons granted upon a finding of

good cause, separate filings by multiple Plaintiffs, Defendants or Intervenors will be

STRICKEN.

Dated May 11, 2009. s/John L. Kane SENIOR U.S. DISTRICT JUDGE

Case 1:09-cv-00085-JLK Document 23 Filed 05/11/2009 Page 2 of 2Case 5:12-cv-00742-R Document 49-1 Filed 08/01/12 Page 2 of 2

IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLORADO

Judge John L. Kane

Case No. 08-cv-1460-AP

COLORADO ENVIRONMENTAL COALITION;COLORADO MOUNTAIN CLUB;COLORADO TROUT UNLIMITED;CENTER FOR NATIVE ECOSYSTEMS;ROCK THE EARTH;NATURAL RESOURCES DEFENSE COUNSEL;NATIONAL WILDLIFE FEDERATION;SIERRA CLUB;THE WILDERNESS SOCIETY; andWILDERNESS WORKSHOP,

Plaintiffs,v.

DIRK KEMPTHORNE, in his official capacity as Secretary of the Department of Interior;BUREAU OF LAND MANAGEMENT;SALLY WISELY, in her official capacity as Colorado State Director of the Bureau of LandManagement; andJAMIE L. CONNELL, in her official capacity as Field Manager for the Glenwood SpringsField Office of the Bureau of Land Management;

Defendants

and

VANTAGE ENERGY PICEANCE LLC,

Intervenor.

ORDER RE MOTION TO INTERVENE

Kane, J.

Upon consideration of the Motion to Intervene (Doc. 6) filed by Vantage Energy

Piceance LLC (Vantage) and Plaintiffs’ objection thereto, I GRANT the Motion but agree with

Plaintiffs that intervenors’ participation should be limited in this appeal in the interest of the

Case 1:08-cv-01460-MSK-KLM Document 13 Filed 09/25/08 USDC Colorado Page 1 of 2Case 5:12-cv-00742-R Document 49-2 Filed 08/01/12 Page 1 of 2

Amber Williams

Text Box

Exhibit 2

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efficient conduct of the proceedings. Accordingly, counsel for Defendants and counsel for

intervenors must CONFER before filing any motion, responsive filing or brief to determine

whether their positions may be set forth in a consolidated fashion. Intervenors may file separate

motions, responsive filings or briefs only to raise arguments or issues Defendants decline to

include in their filings. Any separate filings must include a Certificate of Compliance with the

condition requiring intervenor to confer with counsel for Defendants before filing, and a

statement that the issues raised are not adequately covered by Defendants’ position.

Dated September 25, 2008. s/John L. Kane SENIOR U.S. DISTRICT JUDGE

Case 1:08-cv-01460-MSK-KLM Document 13 Filed 09/25/08 USDC Colorado Page 2 of 2Case 5:12-cv-00742-R Document 49-2 Filed 08/01/12 Page 2 of 2

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