CENTER FOR BIOLOGICAL DIVERSITY v. HAALAND (2022)

ORDER

This matter comes before the undersigned United States Magistrate Judge pursuant to a general assignment made in accordance with the provisions of 28 U.S.C. § 636, and non-party PolyMet Mining, Inc.’s (hereinafter “PolyMet”) Motion to Intervene. [Docket No. 22]. The Court took the Motion under advisement upon the written submissions. (Order [Docket No. 31]).

For the reasons discussed below, PolyMet's Motion to Intervene, [Docket No. 22], is GRANTED.

I. Background

This case arises out of the NorthMet Mining project, an open-pit copper-nickel mine proposed by PolyMet to be located on land in the Lake Superior watershed in Northeast Minnesota. (See, Compl. [Docket No. 1]). In January 2017, the United States Forest Service approved a land exchange through which PolyMet gained title to over 6,000 acres of previously federal land (hereinafter “Land Exchange”), including the land at issue in the present action. Plaintiffs allege that Defendants ¹ inadequately prepared the various reports, assessments, and opinions they were obligated to prepare in evaluating the Land Exchange which resulted in a failure to adequately evaluate the proposed Land Exchange and NorthMet Mining project. (See, Id.).

On January 25, 2022, Plaintiffs initiated the present action by filing their Complaint. [Docket No. 1]. Through the present action, Plaintiffs seeks an Order of this Court “void[ing]” the Land Exchange between the Forest Service and PolyMet; setting aside and vacating the various reports, opinions, and assessments created by Defendants; remanding this matter for further administrative action, including a reinitiating and completion of a new, assessment of the NorthMet Mining project and Land Exchange in accordance with the Endangered Species Act; and an injunction of any implementation of the NorthMet Mining project pending completion of a new, full assessment in compliance with the Endangered Species Act. (Compl. [Docket No. 1]).

Shortly after Plaintiffs initiated this action, PolyMet moved to intervene as a Defendant in this action. (Mot. [Docket No. 22]). None of the present parties in this action have filed responses in opposition to PolyMet's Motion to Intervene; PolyMet represented in its submissions to this Court that neither Plaintiffs nor Defendants take any position on the Motion. (Meet and Confer Statement [Docket No. 27]).

II. Standard of Review

Rule 24 of the Federal Rules of Civil Procedure provides both for intervention as a matter of right and permissive intervention. Specifically, it provides:

(a) Intervention of Right. On timely motion, the court must permit anyone to intervene who:

(1) is given an unconditional right to intervene by a federal statute; or

(2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest.

(b) Permissive Intervention.

(1) In General. On timely motion, the court may permit anyone to intervene who:

(A) is given a conditional right to intervene by a federal statute; or

(B) has a claim or defense that shares with the main action a common question of law or fact.

Fed. R. Civ. P. 24.

“Rule 24 is construed liberally, and we resolve all doubts in favor of the proposed intervenors.” United States v. Union Elec. Co., 64 F.3d 1152, 1158 (8th Cir. 1995). However, “[t]he decision to grant or deny a motion for permissive intervention is wholly discretionary.” Franconia Minerals (US) LLC v. United States, 319 F.R.D. 261, 266 (D. Minn. 2017) (quoting S.D. ex rel. Barnett v. U.S. Dept. of Interior, 317 F.3d 783, 787 (8th Cir. 2003)).

In the Eighth Circuit, a prospective intervenor must “establish Article III standing in addition to the requirements of Rule 24.” The requirements for Article III standing are (1) injury, (2) causation, and (3) redressability. First, the prospective intervenor “must clearly allege facts showing an injury in fact, which is an injury to a legally protected interest that is ‘concrete, particularized, and either actual or imminent.’ ” Second, the prospective intervenor must establish “a causal connection between the injury and the conduct complained of”; in other words, the intervenor's alleged injury must be “fairly traceable to the defendant's conduct.” And, third, the prospective intervenor must establish that “a favorable decision will likely redress the injury.”

Nat'l Parks Conservation Ass'n v. U.S. Envtl. Prot. Agency, 759 F.3d 969, 974 (8th Cir. 2014) (citations omitted).

III. PolyMet's Motion to Intervene. [Docket No. 22].

PolyMet seeks an Order of this Court permitting it to intervene as a Defendant in the present case. (Mot. [Docket No. 22]). In its written materials, PolyMet contends it should be allowed to intervene as a matter of right, and, in the alternative, it argues it should be granted permissive intervention. (Mem. [Docket No. 24]).

A. Standing

As a threshold matter, the Court addresses whether PolyMet has Article III standing to intervene. See, White Earth Nation v. Kerry, No. 14-cv-4726 (MJD/LIB), 2015 WL 12778751, at *3 (D. Minn. Jan. 23, 2015) (noting that standing issues should be addressed prior to the merits of an argument and addressing standing prior to considering a motion to intervene).

PolyMet alleges that it has Article III standing to intervene in this case because if Plaintiffs obtain the relief requested through this litigation, “PolyMet would lose both title to over 6,000 acres where [PolyMet] plans to construct and operate its mine and its section 404 permit, which is essential to its mining plan.” (Mem. [Docket No. 24] at 7). PolyMet alleges that these loses would cause PolyMet significant financial harm. (Id.). PolyMet argues that allowing its intervention will permit it the opportunity to redress the imminent injury by prevailing in the present case. (Id.). By alleging the potential loss of property and profits from the proposed NorthMet Mine, involving the Land Exchange specifically at issue in this case, PolyMet has alleged a concrete, particularized, and imminent invasion of a legally cognizable right. See, White Earth Nation, 2015 WL 12778751, at *4; Nat'l Parks Conservation Ass'n v. U.S. Envtl. Prot. Agency, 759 F.3d 969, 974–75 (8th Cir. 2014).

Moreover, the Eighth Circuit has held that “when the defendant will be compelled to cause the alleged injury to the intervenor if the plaintiff prevails, the intervenor satisfies the traceability requirement even though the defendant and the intervenor seek the same outcome in the case.” See, Am. Civil Liberties Union of Minn. v. Tarek ibn Ziyad Academy, 643 F.3d 1088, 1093 (8th Cir. 2011). In the present case, if Plaintiff prevails, PolyMet will lose title to more than 6,000 acres; this is the same land upon which PolyMet plans to operate its NorthMet mine, and PolyMet would be prohibited from operating the NorthMet mine. In fact, Plaintiffs specifically seek an injunction ceasing all implementation of the NorthMet Mining project. (Compl. [Docket No. 1]). On this basis, the Court finds that PolyMet has satisfied the causation element of Article III standing to intervene. For those same reasons, the Court finds that PolyMet has shown redressability because the injury it alleges would be redressed by a judicial determination in PolyMet's favor.

Accordingly, PolyMet has sufficiently alleged all three prongs of Article III standing—injury, causation, and redressability—and the Court finds that PolyMet has Article III standing to intervene in the present case.

B. Factors for Intervention as a Matter of Right

Rule 24(a)(2) allows a party to timely intervene as a matter of right if: (1) the motion is timely; (2) the intervenor “claims an interest relating to the property or transaction that is the subject of the action”; (3) disposition of the action “may as a practical matter impair or impede the movant's ability to protect its interest”; and (4) the existing parties do not “adequately represent” the interest. In deciding a motion to intervene, the ruling court should “be mindful that ‘the interest test’ is primarily a practical guide to disposing of lawsuits by involving as many apparently concerned persons as is compatible with efficiency and due process.

George v. Uponor, Inc., 290 F.R.D. 574, 577 (D. Minn. 2013) (citations omitted). The Court addresses each of the relevant factors in turn regarding PolyMet's Motion.

1. Timeliness

In the present case, PolyMet filed its Motion to Intervene approximately one month after Plaintiff initiated the present action. There is no indication that PolyMet had anything more than minimal knowledge concerning the pending action before seeking to intervene, and there was no significant delay in PolyMet's decision to intervene. Moreover, there is little likelihood that Plaintiffs or Defendants will be prejudiced by PolyMet's intervention into the litigation at this early stage of the case, as is evidenced by the parties’ decision not to oppose the present Motion to Intervene.² In fact, the Court has not yet even issued a pretrial scheduling order in this case.

Accordingly, the Court finds that PolyMet's Motion to Intervene, [Docket No. 22], was timely filed.

2. Interest

A proposed intervenor must show “a recognized interest in the subject matter of the litigation.” Med. Liab. Mut. Ins. Co. v. Alan Curtis LLC, 485 F.3d 1006, 1008 (8th Cir. 2007). The demonstrated interest must be substantial, direct, and legally protectable. Union Elec. Co., 64 F.3d at 1161.

In the present case, Plaintiffs seeks to void the Land Exchange between the Forest Service and PolyMet and revoke the approval of the NorthMet Mining project. Voiding the Land Exchange would result in PolyMet losing title over more than 6,000 acres of land. Because PolyMet has significant economic and property interest in the Land Exchange and the NorthMet Mining project, PolyMet has demonstrated recognizable economic interests in the present lawsuit. See, Nat'l Parks Conservation Ass'n, 759 F.3d at 976.

Therefore, the Court finds that PolyMet's alleged interests, as detailed above, are sufficiently direct, substantial, and legally protectable to allow PolyMet to intervene in the present action.

3. Possible Impairment

A proposed intervenor must also show that its alleged interest is one that may be impaired by the results of the litigation. For all the reasons discussed above, the present litigation has the potential to impair PolyMet's economic interests in the Land Exchange and the NorthMet Mining project.

Accordingly, PolyMet has shown a sufficient possible impairment to its alleged interest to allow PolyMet to intervene.

4. Inadequate Representation of Interest

Finally, a proposed intervenor seeking to intervene as a matter of right must show that its interest is not adequately protected by the existing parties. “This requirement is met by a minimal showing that representation ‘may be’ inadequate.” Kan. Pub. Emps. Ret. Sys. v. Reimer & Koger Assocs., Inc., 60 F.3d 1304, 1308 (8th Cir. 1995).

In the present case, Defendants have a broad interest in protecting the propriety of their respective regulatory procedures, the integrity of their decisions, and the overall wetlands of Minnesota. On the other hand, PolyMet has a specific economic and ownership interest regarding the validity of the Land Exchange necessary to its plan to construct and operate the NorthMet mine.

On this basis, the Court finds that PolyMet has demonstrated that its interests are sufficiently disparate from the current Defendants such that PolyMet's interests will not be adequately protected by the existing parties to this lawsuit. See, Kan. Pub. Emps. Ret. Sys., 60 F.3d at 1308 (“[t]his requirement is met by a minimal showing that representation ‘may be’ inadequate”).

Therefore, because PolyMet has shown that it has standing to participate in this case, that it has filed a timely Motion to Intervene which demonstrates that PolyMet has a recognized interest in the subject matter of the litigation that may be impaired by the disposition of the litigation, and that PolyMet's interest is not adequately protected by the existing parties, PolyMet's Motion to Intervene in this case as of right is GRANTED.³

IV. Conclusion

Therefore, for the foregoing reasons, and based on all of the files, records, and proceedings herein, IT IS HEREBY ORDERED THAT:

1. PolyMet's Motion to Intervene, [Docket No. 22], is GRANTED; and

2. As soon as practicable, and in any event by no later than twenty-one (21) days from the date of this Order, PolyMet shall answer or otherwise respond to Plaintiffs’ Complaint.

FOOTNOTES

1.   Plaintiff's Complaint names as Defendants Deb Haaland, in her capacity as the Secretary of the Interior; the United States Fish and Wildlife Services; the United States Forest Service; and the United States Army Corps of Engineers. (See, Id.).

2.   The fact that the parties fail to argue that the present Motion to Intervene is untimely represents a sufficient basis to forego the analysis of the timeliness factor in the favor of the proposed intervenor. See, Nat'l Parks Conservation Ass'n v. U.S. E.P.A., 759 F. 3d 969, 975 (8th Cir. 2014) (foregoing consideration of timeliness factor of motion to intervene when timeliness not challenged).

3.   Because the Court concludes that PolyMet may intervene as a matter of right, the Court does not address PolyMet's alternative arguments in support of permissive intervention.

Leo I. Brisbois, UNITED STATES MAGISTRATE JUDGE