ARGUMENT I.

THE STATE OF UTAH SHOULD BE GRANTED INTERVENTION AS A MATTER OF RIGHT An applicant may intervene as a matter of right if: (1) the application is timely, (2) the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is 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 (3) the applicants interest is not adequately represented by existing parties. Fed. R. Civ. P. 24(a). The central concern in deciding whether intervention is proper is the practical effect of the litigation on the applicant for intervention. San Juan Cnty., Utah v. United States, 503 F.3d 1163, 1193 (10th Cir. 2007). Courts should apply these provisions liberally in favor of allowing intervention. Utah Ass'n of Counties v. Clinton, 255 F.3d 1246, 1249 (10th Cir. 2001). Intervention allows the court system to achieve judicial economies of scale by resolving related issues in a single lawsuit. Smuck v. Hobson, 408 F.2d 175, 179 (D.C. Cir. 1969). The Proposed Intervenors are entitled to intervene in this lawsuit because under the applicable legal standards their intervention is timely, they have interests that may be impaired by the litigation, and none of the defendants can adequately represent the Proposed Intervenors interests. A. The Proposed Intervenors Motion to Intervene is Timely

The timeliness of a motion to intervene is assessed in light of all the circumstances, including the length of time since the applicant knew of his interest in the case, prejudice to the existing parties, prejudice to the applicant, and the existence of any unusual circumstances. Utah Ass'n of Counties, 255 F.3d at 1250 (quoting Sanguine, Ltd. v. United States Dep't of
7

Interior, 736 F.2d 1416, 1418 (10th Cir. 1984)). This question must be answered in each case by the exercise of the sound discretion of the trial court. S.E.C. v. Mgmt. Solutions, Inc., 2013 WL 820340, at *2 (D. Utah 2013) (citations omitted). The Proposed Intervenors motion is timely because this case is at its earliest stage and intervention will not cause prejudice to other parties. Intervention will not cause prejudice to the other parties because this case is far from final disposition, no scheduling order has been issued, no trial date set, and no cut-off date for motions set. Utah Ass'n of Counties, 255 F.3d at 125051; see docket. B. This Litigation May Impair the Interests of the Proposed Intervenors

The question of impairment is not separate from the question of existence of an interest. Utah Ass'n of Counties, 255 F.3d at 1253 (quoting Natural Res. Def. Council v. United States Nuclear Regulatory Comm'n, 578 F.2d 1341, 1345 (10th Cir. 1978)); see, e.g., San Juan Cnty., Utah, 503 F.3d at 1190; Impact Energy Res., LLC v. Salazar, 2010 WL 610283, at *2 (D. Utah 2010); Utah v. United States, 2008 WL 4170017, at *4 (D. Utah 2008). The impaired interest rule is a practical guide to disposing of lawsuits by involving as many apparently concerned persons as is compatible with efficiency and due process. San Juan Cnty., Utah, 503 F.3d at 1196 (quoting So. Cal. Edison Co. v. Lynch, 307 F.3d 794, 803 (9th Cir. 2002)). An applicant for intervention must claim an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicants ability to protect that interest. San Juan Cnty., Utah, 503 F.3d at 1190 (quoting Fed. R. Civ. P. 24(a)) (emphasis added). Courts should not read the impaired interest rule in an overly technical or formulaic

manner. See id. Nor should the court focus on the particular issue before the court but instead should focus on the relation between the applicants interests and the subject of the action. Impact Energy Res., LLC, 2010 WL 610283, at *2. The burden to establish impairment is minimal; the applicant only needs to show that impairment is possible if intervention is denied. Utah Ass'n of Counties, 255 F.3d at 1253 (emphasis added). While an applicant may have alternative forums for resolution of an impaired interest, the mere availability of alternative forums is not sufficient . . . Utah Ass'n of Counties, 255 F.3d at 1254 (citation omitted). As a practical matter, the Proposed Intervenors have a direct historical, cultural and economic interest in this litigation. Livestock is an important segment of the history, culture and economy of both Grand Staircase-Escalante National Monument and Glen Canyon National Recreation Area, as recognized by the BLM Policy Manual 4100. The State of Utah has created a Monument Grazing District and both counties have been involved in the planning, study and continued support of grazing and range health. Past and current studies demonstrate the health of AUMs provide no justification for limiting or eliminating grazing activities in the Monument or NRA. Yet, because this is a possible outcome of this litigation, Proposed Intervenors interests may be impaired without their participation in this litigation. Proposed Intervenors also have a strong interest in maintaining the historical, cultural and economic benefits representing of livestock grazing. Livestock producers view lawsuits like the one at bar to be the biggest threat to their use of public lands.1 The Proposed Intervenors sovereign interests in wildlife or water management may also be impaired if the defendants take
Livestock Grazing in Utah: History and Status, A Report for the Utah Govenors Public Lands Policy Coordination Office 59, http://governor.utah.gov/publiclands/PLPCOStudies/LivestockGrazinginUtahHistory&Status.pdf.
1

actions or enter agreements that are inconsistent with the interests of the Proposed Intervenors as a whole. The Intervenor, as sovereign, has an interest in the how its lands, water and other natural resources are utilized. C. No Other Defendant Can Adequately Represent the Economic and Sovereign Interests of the State of Utah An applicant is not entitled to intervene as of right if their interest is adequately represented by existing parties. Fed. R. Civ. P. 24(a)(2). The burden of showing inadequate representation is minimal; the applicant only needs to show that representation may be inadequate. Utah Ass'n of Counties, 255 F.3d at 1254. The possibility that the interests of the applicant and the parties may diverge need not be great in order to satisfy this minimal burden. Id. (citing Natural Res. Def. Council, 578 F.2d at 1346). If the Proposed Intervenors request for intervention is denied, such an action would force directors of federal agencies to represent both the interests of the Proposed Intervenors as well as the interests of Americas wider public. This, on its face, creates an impossible conflict that satisfies the minimal burden of showing inadequacy of representation. Utahns for Better Transp. v. U.S. Dep't of Transp., 295 F.3d 1111, 1117 (10th Cir. 2002) (citations omitted). This Court has held that federal agencies may not adequately defend an applicants interests if the agencies would not defend with the same zeal as the applicant would. Impact Energy Res., LLC, 2010 WL 610283, at *5. Proposed Intervenors have already demonstrated their strong interest in continued grazing and would defend their sovereign, cultural, historic and economic interests with greater zeal than federal agencies. In addition, Proposed Intervenors have applicable expertise that the governmental agencies may be lacking. See Utahns for Better Transp., 295 F.3d at 1117. Proposed
10

Intervenors are conducting updated rangeland health surveys to submit for consideration. For these reasons, none of present Defendants can adequately represent the interests of the Proposed Intervenors. II. IN THE ALTERNATIVE, THE PROPOSED INTERVENORS SHOULD BE GRANTED PERMISSIVE INTERVENTION In the alternative, the Proposed Intervenors should be permitted to intervene in this matter pursuant to Fed. R. Civ. P. 24(b)(2). Permissive intervention should be granted if the applicant: (1) makes a timely application, (2) has a separate claim or defense that has a common question of law or fact with the main action, and (3) does not unduly delay or prejudice the rights of original parties. Utah ex rel. Utah State Dep't of Health v. Kennecott Corp., 232 F.R.D. 392, 398 (D. Utah 2005) An application for permissive intervention must be timely. Fed. R. Civ. P. 24(b). As set forth above, the Proposed Intervenors application is timely. Fed. R. Civ. P. 24(b)(1)(B) requires that the applicant have a claim or defense that shares with the main action a common question of law or fact. As sovereign over a majority of the areas in dispute and in representing livelihoods of Utahn livestock ranchers, many of the Proposed Intervenors claims and defenses share common questions of law and fact with the case at bar. The decision to grant permissive intervention is within the Courts discretion. City of Stilwell, Okl. v. Ozarks Rural Elec. Co-op. Corp., 79 F.3d 1038, 1043 (10th Cir. 1996). Courts consider whether a grant of permissive intervention would unduly delay or prejudice the rights of original parties. Fed. R. Civ. P. 24(b)(3); Utah ex rel. Utah State Dep't of Health, 232 F.R.D. at 398. As set forth above, intervention will not cause prejudice to the other parties because this
11

case is far from final disposition. See, e.g., S.E.C., 2013 WL 820340, at *3. Further, the Court should grant permissive intervention to serve judicial economy by reducing the risk of relitigating these issues. CONCLUSION For the foregoing reasons, Proposed Intervenors respectfully request that the Court grant its motion for intervention as of right under the authority of Fed. R. Civ. P. 24(a), or, in the alternative grant its motion for permissive intervention under the authority of Fed. R. Civ. P. 24(b). RESPECTFULLY SUBMITTED this 31st day of July 2013.

/s/Spencer Paul Attorney for Proposed Intervenors

12