MARK BRNOVICHAttorney GeneralFirm Bar #14000James F. OdenkirkState Bar No. 0013992Assistant Attorney GeneralOffice of the Attorney General1275 West WashingtonPhoenix, AZ 85007-2926Telephone: (602) 542-7787james.odenkirk@azag.gov

Attorneys for the State of Arizona

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

WildEarth Guardians; New Mexico Wilderness Alliance; and Friends of Animals,

Plaintiffs,

v.

Daniel Ashe, in his official capacity as Director of the United States Fish and Wildlife Service; United States Fish and Wildlife Service; Sally Jewell, in her capacity as Secretary of the Interior; United States Department of the Interior,

Defendants.

No. 4:15-cv-00285-JGZ

STATE OF ARIZONA’S MOTION TO INTERVENE

Pursuant to Local Rules of Civil Procedure (“LRCiv.”) Rule 7.2 and Federal Rules

of Civil Procedure (“Fed. R. Civ. P.”) Rule 24, the State of Arizona (“Arizona”) moves to

intervene in this action as of right, or in the alternative, to obtain permissive intervention.

Arizona’s motion meets the requirements for intervention: (1) the motion is timely; (2)

Arizona has an interest related to the property or transaction which is the subject of the

action; (3) Arizona is so situated that, without intervention, the disposition of the case

may impair or impede its ability to protect that interest; and (4) Arizona’s interest will not

be adequately represented by the parties. In support of this motion, Arizona relies on the

following memorandum of points and authorities and materials referenced or cited

therein.

MEMORANDUM OF POINTS AND AUTHORITIES

Plaintiffs filed the instant action against Director Dan Ashe, the U.S. Fish and

Wildlife Service (“FWS”), Secretary of the Interior Sally Jewell and the Department of

the Interior (“Defendants”), alleging violations of the Endangered Species Act (“ESA”),

the National Environmental Policy Act (“NEPA”) and the Administrative Procedures Act

(“APA”). Plaintiffs contend that Defendants have violated ESA, NEPA and the APA

through the promulgation of Defendants’ final revised rule (“Revised Rule”) governing

the Mexican wolf experimental nonessential population and a research and recovery

permit issued under section 10(a)(1)(A) of ESA (“Permit”). (Compl. ¶ 2.) Plaintiffs seek

a declaratory judgment that Defendants violated the law and seek and order that sets aside

and remands the challenged portions of the Revised Rule, the Permit and the Final

Environmental Impact Statement (“Final EIS”). (Id. Plaintiffs’ Request for Relief.)

Pursuant to Fed. R. Civ. P. 24(a), or in the alternative, 24(b), Arizona seeks to

intervene in this matter to defend the Revised Rule, the Permit and Final EIS. Plaintiffs

are pursuing remedies that would impair Arizona’s sovereign authority under state and

federal law to manage and conserve wildlife within the State, and undermine Arizona’s

participation in developing the rule and the EIS. Arizona’s motion is timely and would

not cause prejudice or delay to any party hereto, and despite Arizona and Defendants

having overlapping interests in defending the challenged actions, Defendants cannot

adequately represent Arizona’s interests in this matter. Therefore, Arizona is entitled to

intervene as a matter of right under Rule 24(a). Alternatively, if the Court finds that

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Arizona is not entitled to intervene as a matter of right, Arizona should be granted

permissive intervention under Rule 24(b).

I. FACTUAL BACKGROUND.

A. Mexican Wolf Reintroduction Project.

Pursuant to section 10(j) of ESA, 16 U.S.C. § 1539(j), the FWS adopted a rule in

1998 to govern the initial reintroduction of a nonessential experimental population of

Mexican wolves. See Establishment of a Nonessential Experimental Population of the

Mexican Gray Wolf in Arizona and New Mexico (Final Rule), 63 Fed. Reg. 1752 (Jan. 12,

1998) (codified at 50 C.F.R. § 17.84k). This rule explained that the purpose for

reintroducing Mexican wolves was to meet the objective in the 1982 Mexican wolf

recovery plan to restore a “viable, self-sustaining population of at least 100 Mexican

wolves in a 5,000 square mile area” in Arizona and New Mexico. Id. at 1753. In

collaboration with the state wildlife agency the Arizona Game and Fish Department

(“AGF”), the FWS in 1998 initially released captive-born Mexican wolves into an area

described as the Blue Range Wolf Recovery Area (“BRWRA”) in Arizona. See Final

Environmental Impact Statement for the Proposed Revision to the Regulations for the

Nonessential Experimental Population of the Mexican Wolf, Ch. 1 at 6 (Nov 14, 2014).1

By 2013, the FWS determined that the original rule (“1998 Rule”) for the

reintroduction project had a limiting effect on the growth, persistence and the genetic

variation within the experimental population, and the FWS moved to revise the rule to

make it more effective at furthering the conservation of Mexican wolves. Id. at 17. On

June 13, 2013, the FWS published a proposed rule that revises the 1998 Rule for the

Mexican wolf experimental population. Id. at 2. On July 25, 2014, the FWS published a

Notice of Availability for the proposed rule and a draft EIS, with a sixty-day public

comment period starting July 25, 2014. Id.

1http://www.fws.gov/southwest/es/mexicanwolf/pdf/ EIS_for_the_Proposed_Revision_to_the_Regulations_for_the_Nonessential_Experimental_Population_of_the_Mexican_Wo lf.pdf (last visited August 14, 2015) .

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In November 2014, the FWS issued a final EIS for the proposed rule. Id. The

FWS selected a preferred alternative and explained that the selected alternative would

further the conservation of Mexican wolves “by improving the effectiveness of the

Reintroduction Project in managing the experimental population.” Id. Executive

Summary at 3. On January 16, 2015, the FWS published the Revised Rule and issued the

Permit under section 10(a)(1)(A) of ESA. See Revision to the Regulations for the

Nonessential Experimental Population of the Mexican Wolf (Final Rule), 80 Fed. Reg.

2512, 2557 (Jan. 16, 2015) (to be codified at 50 C.F.R. § 17.84k). The Revised Rule

includes the following substantial changes to the management of the experimental

population: (1) increases the total number of wild wolves in the experimental population

to a target population objective of 300-325 wolves and expands the area that Mexican

wolves may disperse into and occupy within a larger Mexican Wolf Experimental

Population Area (“MWEPA”); (2) provides additional areas for the initial release and

translocation of Mexican wolves into unoccupied historical habitat; (3) provides

improved genetic variation within the experimental population by using cross-fostering of

Mexican wolf pups and using the captive Mexican wolf population to provide genetic

interchange with the wild wolf population; (4) uses voluntary management agreements to

permit the release of Mexican wolves on private land; (5) provides for managing

nuisance or depredating wolves in a manner that balances wolf population growth while

minimizing impacts to local stakeholders; and (6) expands the southern boundary for the

MWEPA and provides a management regime that better accommodates wolves

dispersing north from Mexico and south from the experimental population in Arizona and

New Mexico. Id. at 2557-2567.

B. AGF’s Role in the Mexican Wolf Reintroduction Project and the Development of the Revised Rule and EIS.

AGF is the state agency with jurisdiction under state law for managing and

conserving wildlife in Arizona. See Ariz. Rev. Stat. Ann. (“A.R.S.”) §§ 17-101 to -481.

Under section 6 of ESA, 16 U.S.C. § 1535, the FWS and AGF are to cooperate, to the

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maximum extent practicable, in carrying out ESA’s policies and purposes and any

program for the conservation of threatened and endangered species, including the

experimental nonessential population of Mexican wolves. Since the initial release of

Mexican wolves in 1998 to the present, AGF has been a member of the Mexican Wolf

Interagency Field Team (“IFT”), consisting primarily of field staff with the FWS and

AGF. The IFT is responsible for the majority of routine management activities with the

reintroduction project, and has primary responsibilities for collecting data, monitoring,

and managing the experimental wolf population. Final EIS Ch. 1 at 9.

The FWS was required to consult with AGF “in developing and implementing”

the Revised Rule. 50 C.F.R. § 17.81(d). The Revised Rule “shall, to the maximum

extent practicable, represent an agreement between the Fish and Wildlife Service and the

affected State and Federal agencies and persons holding any interest in land which may

be affected by the establishment of an experimental population.” Id. In accord with

federal regulations implementing NEPA, AGF also served as a cooperating agency to

assist the FWS in preparing the EIS for the proposed rule. 40 C.F.R. § 1501.6; see also

Addendum to the Memorandum of Understanding Between the USFWS and the Arizona

Game and Fish Department et al., (Dec. 12, 2013) (attached hereto as Exhibit 1). In

preparing the EIS, the FWS was required, to the maximum extent possible, to use AGF’s

proposals and incorporate into the EIS AGF’s comments, recommendations and data. Id.

Consistent with AGF’s authority and responsibility under ESA, NEPA and

implementing regulations thereto, AGF made numerous recommendations to the FWS for

changes to the draft EIS and the proposed rule. The FWS consulted with AGF

throughout the process, and claimed it made a “good faith effort to reach agreement” with

AGF to incorporate AGF’s recommendations into the final rule. 80 Fed. Reg. at 2534. In

particular, AGF requested (1) a population objective of 300-325 wolves; (2) a phased

approach to initial releases, translocations and occupancy based on AGF’s concern that

the prey population in western Arizona is not sufficiently abundant to support a wolf

population; and (3) guidelines for determining wolves are having unacceptable impacts to

native ungulate populations. Id. at 2526. The Revised Rule now includes each of these

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recommended changes, and the FWS acknowledged that these changes represent an

agreement with AGF as provided in 50 C.F.R. § 17.81(d). Id. at 2548.

II. ARGUMENT.

A. Arizona Has a Right to Intervene in this Action.

Fed. R. Civ. P. 24(a) entitles Arizona to intervene to defend, in all phases of the

litigation, the FWS’s Revised Rule, the Permit and Final EIS. See Wilderness Soc’y v.

U.S. Forest Serv., 630 F.3d 1173, 1178 (9th Cir. 2011). Pursuant to Rule 24(a), a court

must, upon timely motion, permit intervention as a matter of right when “the applicant

demonstrates that (1) the motion to intervene is timely; (2) the applicant has an interest

related to the property or transaction which is the subject of the action; (3) the applicant is

so situated that, without intervention, the disposition of the action may impair or impede

its ability to protect that interest; and (4) the applicant’s interest is not being adequately

represented by the parties.” Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094, 1107-

08 (9th Cir. 2002), overruled in part on other grounds by Wilderness Soc’y v. U.S. Forest

Serv., 313 F.3d 1094 (9th Cir. 2002). A court must construe Rule 24(a) liberally and in

favor of potential intervenors. Sw. Ctr. for Biological Diversity v. Berg, 268 F.3d 810,

818 (9th Cir. 2001). A court’s evaluation of a Rule 24(a) motion is “‘guided primarily by

practical considerations’ not technical distinctions.” Id. at 818 (quoting United States v.

Stringfellow, 783 F.2d 821, 826 (9th Cir. 1986)); United States v. City of Los Angeles,

288 F.3d 391, 397-98 (9th Cir. 2002) (favoring intervention to serve the efficient

resolution of issues and broad access to the courts). In evaluating a Rule 24(a) motion, a

court must “accept as true the non-conclusory allegations made in support of

intervention.” Berg, 268 F.3d at 819. As discussed below, Arizona meets all parts of the

Rule’s requirements for intervention as of right.

1. Arizona’s Application to Intervene Is Timely.

Whether a motion to intervene is timely is based on three considerations: (1) the

stage of the proceeding at which the applicant seeks to intervene; (2) the prejudice to the

other parties; and (3) the reason for and length of delay. United States v. Covington Tech.

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Co., 967 F.2d 1391, 1394 (9th Cir. 1992). Of these factors, prejudice to existing parties

is the most important timeliness consideration. United States v. Oregon, 745 F.2d 550,

552 (9th Cir. 1984). The Ninth Circuit has found an application timely when the motion

to intervene is filed less than two months after the plaintiffs filed a complaint and before

the defendants filed an answer. Fund for Animals v. Norton, 322 F.3d 728, 735 (9th Cir.

2003). Arizona’s application is timely in filing this motion within sixty days of the date

Plaintiffs filed the Complaint and prior to Defendants filing any responsive pleading. At

this stage in the proceeding, no prejudicial delay has occurred, and the Court has not

issued any decision on the merits of the case.

2. Arizona Has Sufficient Interests Related to the Subject of the Action.

A party moving to intervene must establish that it has a “protectable interest in the

outcome of the litigation of sufficient magnitude to warrant inclusion in the action.” Or.

Natural Res. Council v. Bureau of Reclamation, 980 F.2d 738, 738 (9th Cir. 2001). An

intervenor must show that the relief sought will “‘have a direct, immediate and harmful

effect upon [its] legally protected interests.’” Berg, 268 F.3d at 818 (quoting Council v.

United States Forest Serv., 66 F.3d 1489, 1494 (9th Cir. 1995)). A sufficient interest

exists if the interest asserted is protected by some law and a concrete relationship exists

between the legally protected interest and a plaintiff’s claims. United States v. Alisal

Water Corp., 370 F.3d 915, 919 (9th Cir. 2004). The law giving rise to the protected

interest need not be a statute under which a plaintiff brings an action, but may be an

interest protected by any statute. Id.

Plaintiffs’ lawsuit impacts Arizona’s legally protected sovereign interest in

managing and conserving all wildlife species in Arizona, including the Mexican wolf.

See A.R.S. § 17-231 (authorizing AGF to establish “broad policies and long range

programs” for managing and conserving wildlife); Kleppe v. New Mexico, 426 U.S. 529,

545 (1976) (recognizing that states have broad trustee and police powers over wildlife

within their jurisdiction unless specifically preempted by federal law). AGF’s

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recommended changes included in the Revised Rule are based on AGF’s legal mandate

to balance Mexican wolf conservation and the conservation of other wildlife species

impacted by the reintroduction program.

Plaintiffs argue that Defendants violated NEPA in failing to supplement the NEPA

analysis when the FWS adopted AGF’s recommendations in the Final EIS that include a

population objective, limits on wolf dispersal and provisions for removing wolves that

have unacceptable impacts to ungulate herds. (Compl. ¶ 34.) Plaintiffs contend that

these changes do not provide for the conservation of the Mexican wolf. (Id. ¶ 38.) If

Plaintiffs prevail and the FWS is required to remove AGF’s changes from the Revised

Rule and allow unrestricted growth and dispersal of Mexican wolves, this will have an

adverse impact on AGF’s ability to manage and conserve other wildlife species in

Arizona. Because this outcome could have an adverse impact on Arizona’s interest in

managing and conserving all wildlife in the State, Arizona has a right to intervene in this

action to protect its legal interest. See Forest Conservation Council v. U.S. Forest Serv.,

66 F.3d 1489, 1495-96 (9th Cir. 1995) (holding that a state establishes a sufficient legal

interest in an action threatening its ability to manage and conserve its land and natural

resources).

Additionally, Arizona has a protected interest under federal law that requires the

FWS to cooperate with AGF when developing the EIS and the Revised Rule, and to

consider AGF’s recommendations for the Revised Rule. Specifically, section 6 of ESA

and the FWS’s regulations require the FWS to consult with state game and fish agencies

in developing and implementing experimental population rules and, to the maximum

extent practicable, the experimental population rule should represent an agreement

between the FWS and the affected state wildlife agencies. 50 C.F.R. § 17.81. Also, the

Council on Environmental Quality (“CEQ”) issued regulations implementing NEPA that

authorize AGF as a cooperating agency with jurisdiction over all wildlife in Arizona to

participate in developing the EIS. 40 C.F.R. § 1501.6. The FWS as the lead agency has

an obligation to use AGF’s analysis and proposals to the maximum extent possible and

incorporate AGF’s comments, recommendations and data into the EIS. Id.

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Plaintiffs allege the FWS violated ESA and NEPA by incorporating AGF’s

recommended changes into the Revised Rule without preparing a supplemental EIS.

(Compl. ¶¶ 63, 64.) This allegation is an attack on AGF’s role in the changes the FWS

made to the Revised Rule, and Plaintiffs seek an order that in effect will set aside AGF’s

recommended changes in the Revised Rule. (Id. Plaintiffs’ Request for Relief.) Arizona

has a right to defend its proposals and defend the FWS’s decision to incorporate those

proposals into the final rule and the preferred alternative in the Final EIS. See Idaho

Farm Bureau v. Babbitt, 58 F.3d 1392, 1397-98 (9th Cir. 1995) (holding that an

organization “is entitled as a matter of right to intervene in an action challenging the

legality of a measure it has supported”); see also Wilderness Soc’y, 630 F.3d at 1180

(inferring that a party that participates in the NEPA process demonstrates an adequate

interest in the litigation); Sagebrush Rebellion v. Watt, 713 F.2d 525, 526-27 (9th Cir.

1983) (allowing intervention for a party that participated in the FWS’s administrative

process leading to a decision establishing a conservation area).

3. Arizona Will Be Unable to Protect its Interest Without Intervening.

Once a party seeking intervention establishes that it has a protectable interest that

relates to the subject matter of the litigation, the party must also establish that disposition

of the matter, as a practical matter, may impair the interest. See City of Los Angeles, 288

F.3d at 401. Arizona must only show that harm to a legal interest is possible if

intervention is denied. See WildEarth Guardians v. U.S. Forest Serv., 573 F.3d 992, 995

(10th Cir. 2009). An absent party is entitled to intervene when the outcome of an action

will affect the absent party. See Berg, 268 F.3d at 822.

Plaintiffs allege the FWS violated NEPA in failing to prepare a supplemental EIS

and provide for additional public input after the FWS adopted AGF’s proposed changes.

(Compl. ¶ 34.) Plaintiffs further allege that the proposed changes are not based on the

best available science. (Id. ¶ 49.) Because Plaintiffs indirectly implicate AGF in the

alleged ESA and NEPA violations, proceeding in this litigation without Arizona will

impair Arizona’s ability to protect its interest. See Idaho Farm Bureau, 58 F.3d at 1398

(granting intervention because the disposition of the case could impair the intervenor’s

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interest in the challenged action). Accordingly, a decision in this matter that sets aside

the challenged portions of the Revised Rule, the Permit and Final EIS will have a direct,

immediate and harmful effect on Arizona’s interests by impairing AGF’s authority and

responsibility to manage and conserve wildlife, including the Mexican wolf, and

undermining its role as a cooperating agency under ESA and NEPA.

4. Arizona’s Interests Are Not Adequately Represented by Other Parties.

The requirement of Rule 24(a) that Arizona’s interests are not adequately

represented is satisfied if Arizona shows that representation of its interests by another

party “may be” inadequate, and the burden of showing is minimal. Trbovich v. United

Mine Workers, 404 U.S. 528, 538 n.10 (1972). Arizona’s interests are not adequately

represented by any other party because no other party has a duty to protect or defend

AGF’s authority and responsibility to regulate, manage and conserve wildlife in Arizona

and its authority and function as a cooperating agency under ESA and NEPA. See

Natural Res. Def. Council v. Castle, 561 F.2d 904 (D.C. Cir. 1977).

The Ninth Circuit has provided the following guidance on the adequacy of

representation:

In determining adequacy of representation, we consider whether the interest of a present party is such that it will undoubtedly make all the intervenor’s arguments; whether the present party is capable and willing to make such arguments; and whether the intervenor would offer any necessary elements to the proceedings that other parties would neglect.

Forest Conservation Council, 66 F.3d at 1498-99.

Arizona has separate and distinct interests in regulating, managing and conserving

wildlife, and this requires that Arizona be heard independent of existing parties. The

FWS has a broader national interest to conserve threatened and endangered species that

are listed under ESA. This interest does not extend to the conservation of all other

wildlife species in Arizona or those wildlife species in Arizona that are directly impacted

by the FWS’s actions to protect listed species. The FWS agreed to incorporate AGF’s

changes into the Revised Rule, but the FWS did not initially support these changes or

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include them in earlier versions of the rule. The FWS may have an interest in defending,

in whole or in part, its Revised Rule, the Permit and final EIS, but no presumption should

exist that the FWS will adequately represent Arizona’s interests if Arizona’s interests are

not identical with those of the FWS. See Berg, 268 F.3d at 823.

No other party can bring to this matter Arizona’s perspective in seeking to protect

its sovereign interests in wildlife conservation or share Arizona’s role authorized by

federal law in making recommendations to the process of revising the Mexican wolf rule

and reaching agreement with the FWS on the terms of the rule.

B. Arizona Has Met the Requirements for Permissive Intervention.

A court may grant permissive intervention pursuant to Rule 24(b) when an

applicant for intervention shows (1) independent grounds for jurisdiction; (2) the motion

is timely, and (3) the applicant’s claim or defense, and the main action, have a question of

law or fact in common. Kootenai Tribe of Idaho, 313 F.3d at 1109-1111. In exercising

its discretion, the Court must consider “whether the intervention will unduly delay or

prejudice the adjudication of the rights of the original parties.” Fed. R. Civ. P. 24(b)(2).

For permissive intervention, a “significant protectable interest” is not required, and an

applicant need not have a “direct personal or pecuniary interest in the subject matter of

the litigation.” 313 F.3d at 1108 (quoting SEC v. U.S. Realty & Improvement Co., 310

U.S. 434, 459 (1940)).

Here, Arizona satisfies the requirements for permissive intervention because the

alleged violations of ESA and NEPA and the requested relief directly impair or impede

Arizona’s ability to protect its interests. A question of law or fact in common with the

main action exists because Arizona has a common interest with Defendants in defending

the challenged actions, and Arizona will likely raise similar arguments in direct response

to Plaintiffs’ claims. Id. at 1110-11. Arizona’s participation will not unduly delay the

matter or prejudice the original parties in the case. Arizona has timely moved to

intervene under the standard for Rule 24(a), and no party can demonstrate prejudice.

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III. CONCLUSION.

For the reasons stated, Arizona requests the Court grant Arizona’s motion to

intervene in this matter.

RESPECTFULLY SUBMITTED this ______ day of August, 2015.

MARK BRNOVICHAttorney General

/s/ James F. OdenkirkJames F. OdenkirkAssistant Attorney GeneralAttorneys for State of Arizona

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CERTIFICATE OF SERVICE

I hereby certify that on the _____ day of August, 2015, I electronically transmitted

the attached document to the Clerk’s office using the CM/ECF System for filing and

transmittal of a Notice of Electronic Filing.

/s/ James F. Odenkirk

James F. Odenkirk

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