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Center for Biological Diversity v. United States Fish and Wildlife Service

United States District Court, D. Arizona

November 15, 2018

Center for Biological Diversity, Plaintiff,
v.
United States Fish and Wildlife Service, Defendant.

          ORDER

          Honorable Bruce G. Macdonald United States Magistrate Judge

         Currently pending before the Court are Intervenor Applicant National Association for Biomedical Research's Expedited Motion to Intervene for Purpose of Appeal (Doc. 73), Motion to Stay Judgment Pending Appeal (Doc. 74), and Expedited Motion for Extension of Time to Appeal (Doc. 77). In its discretion, the Court finds this case suitable for decision without oral argument. See LRCiv. 7.2(f). The Parties have adequately presented the facts and legal arguments in their briefs and supporting documents, and the decisional process would not be significantly aided by oral argument.

         I. BACKGROUND

         The instant litigation arose from Plaintiff Center for Biological Diversity's (“CBD”) request to Defendant United States Fish and Wildlife Service (“USFWS”) seeking Law Enforcement Management Information System (“LEMIS”) data pursuant to the Freedom of Information Act (“FOIA”). USFWS withheld certain categories of LEMIS data pursuant to FOIA Exemption 4, which exempts confidential commercial information. Through this litigation CBD sought release of the following data fields: 1) foreign importer/exporter; 2) United States permit number; 3) quantity; and 4) name of carrier. See Order 3/30/2018 (Doc. 66). On March 30, 2018, the Court denied in part and granted in part Defendant USFWS's Motion for Summary Judgment, and granted in part and denied in part Plaintiff CBD's Cross-Motion for Summary Judgment. See Id. Accordingly, Defendant USFWS was directed to provide the data responsive to CBD's request. See id.

         After the Court issued its Order, Intervenor Applicant National Association for Biomedical Research (“NABR”) sought to intervene for purposes of appeal. Subsequently, Defendant USFWS filed its Notice of No. Appeal (Doc. 81). Intervenor Applicant NABR filed a Notice of Appeal (Doc. 84), and the Ninth Circuit Court of Appeal granted a limited remand to allow this Court the opportunity to rule on Intervenor Applicant's pending motions.

         II. ANALYSIS

         A. Intervention

         Intervenor Applicant NABR seeks to intervene “for the purpose of appealing [the] Court's March 30, 2018 judgment requiring U.S. Fish and Wildlife Service . . . to produce confidential information that it obtained from 18 different companies, eight of which are NABR members.” NABR's Mot. to Intervene (Doc. 73) at 2. Intervenor Applicant NABR further noted USFWS's uncertainty regarding appeal, and as such “NABR move[d] to intervene on behalf of its members to ensure Ninth Circuit review of the decision.” Id. In Reply, NABR specified that its members include: Charles River Laboratories; Bristol-Myers Squibb; Covance Laboratories; AbbVie; Boehringer Ingelheim Pharmaceuticals; SNBL; Genentech; Novartis; and Alynlam Pharmaceutical. Reply (Doc. 83) at 1 n.1. Each of these entities submitted declarations in support of withholding the requested information under Exemption 4. Id.; see also Order 3/30/2018 (Doc. 66) at 8-14.

         1. Intervention as of Right

          Rule 24(a), Federal Rules of Civil Procedure, governs interventions as of right and provides in relevant part:

On timely motion, the court must permit anyone to intervene who . . . 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.

Fed. R. Civ. P. 24(a). Intervention on appeal is similarly governed by Rule 24, Federal Rules of Civil Procedure. Bates v. Jones, 127 F.3d 870, 873 (9th Cir. 1997) (citations omitted). An applicant seeking to intervene as of right must satisfy the following four-part test:

         (1) the application for intervention must be timely; (2) the applicant must have a significantly protectable interest relating to the property or transaction that is the subject of the action; (3) the applicant 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; and (4) the applicant's interest must not be adequately represented by the existing parties in the lawsuit.

         United States v. Sprint Communications, Inc., 855 F.3d 985, 991 (9th Cir. 2017) (citations and quotations omitted). “[T]he party seeking to intervene has the burden to show that no existing party adequately represents its interests.” California Dept. of Toxic Substances Control v. Commercial Realty Projects, Inc., 309 F.3d 1113, 1119 (9th Cir. 2002) (citations omitted); see also United States v. Alisal Water Corp., 370 F.3d 915, 919 (9th Cir. 2004). Further, “[i]n determining whether intervention is appropriate . . . [the Court is] guided primarily by practical and equitable considerations[, ] . . . generally interpret[ing] the requirements broadly in favor of intervention.” Donnelly v. Glickman, 159 F.3d 405, 409 (9th Cir. 1998). “In determining whether an intervenor may subsequently appeal from a decision not being appealed ...


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