08-07-13 DBOC Files to have court affirm decision denying intervention by EAC

DBOC vs EAC filing 08-07-13

Some excerpts from the introduction in the filing:

“Environmental Action Committee of West Marin et al. (the “Proposed Intervenors”) cannot meet the applicable standard for intervention….”

“They cannot make a “very compelling showing” that their interests are not adequately represented by the Federal Defendants, because for the past forty years they have marched in lock step with the Federal Defendants. In the 1970s both took the position that the oyster farm should continue in operation despite the passage of the Wilderness Act. Recently they both changed positions together, and today both insist that the oyster farm must go.”


“The Proposed Intervenors now say that DBOC’s commercial operations during the wind-down period are prohibited by the 1964 Wilderness Act, 16 U.S.C. §§ 1131-1136. But the Proposed Intervenors said exactly the opposite in the district court when DBOC argued that its commercial activities prevented Drakes Estero from being converted from “potential wilderness” to “designated wilderness.” In the briefing on that issue, the Proposed Intervenors stood shoulder to shoulder with the Federal Defendants: both asserted that DBOC’s continuing operations are not “commercial” operations prohibited by the 1964 Wilderness Act.”

“The Federal Defendants and Proposed Intervenors have coordinated their briefing in opposition to DBOC. In briefs filed the same day, the Federal Defendants cited to declarations filed by the Proposed Intervenors, and the Proposed Intervenors cited to declarations filed by the Federal Defendants.”

“The Proposed Intervenors are now even more closely linked to the Federal Defendants, because defendant Secretary of the Interior Jewell was, until she became Secretary, a member of the Board of Trustees of one of the Proposed Intervenors.”

“The requirement that proposed intervenors make a “very compelling showing” was plainly designed for situations exactly like this, in which private organizations want to cheer on a federal agency that has been sued over an administrative decision those organizations support. Here, the Proposed Intervenors undoubtedly want to cheer the Federal Defendants on, but they are unable to make a showing, much less a “very compelling showing,” that they have significantly different interests.”

“If the Proposed Intervenors do not need to make a “very compelling showing,” what standard applies? According to the Proposed Intervenors, this Court should evaluate their compliance with three sub-factors, of which the first is the likelihood that a proposed intervenor will make arguments not made by the parties. But the Proposed Intervenors fail to meet that standard as well because they have not identified a single argument that they would make in the litigation that the Federal Defendants will not make.”
“If there is any difference between the Proposed Intervenors and the Federal Defendants, it is a mere difference in litigation tactics, and that is certainly not a “very compelling showing” that the Federal Defendants do not adequately represent the interests of the Proposed Intervenors.”
“The trial court’s decision denying intervention should be affirmed.”

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