IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

STATE OF ALASKA,

Plaintiff,

v. Case No. 3:10-cv-00271-TMB

JANE LUBCHENCO, et al.,

Defendants.

ALASKA SEAFOOD COOPERATIVE, et al.,

Plaintiffs,

v. Case No. 3:11-cv-00001-TMB

NATIONAL MARINE FISHERIES SERVICE, et al.,

Defendants.

FREEZER LONGLINE COALITION,

Plaintiff,

v. Case No. 3:11-cv-00004-TMB

JANE LUBCHENCO, et al.,

Defendants.

ORDER

Aleut Corporation and Aleut Enterprises, LLC (the “Aleut Entities”), move for

permissive intervention as plaintiffs in these partially consolidated actions under Federal Rule of

1
Civil Procedure 24(b).1 The existing Plaintiffs have filed responses indicating that they do not

oppose the Aleut Entities’ motion.2 The Federal Defendants have filed an opposition.3 For the

reasons stated below, the Aleut Entities’ motion is DENIED, however, they will be permitted to

participate as amici curiae.

I. BACKGROUND

These proceedings encompass three partially consolidated actions.4 The State of Alaska

filed the first action on December 14, 2010.5 Various fishing industry entities, including Alaska

Seafood Cooperative and Freezer Longline Coalition, filed additional actions on January 5, 2011,

and January 12, 2011, respectively.6 In each case, the Plaintiffs challenge an Interim Final Rule

and related federal administrative determinations which have the effect of restricting commercial

fishing in several bodies of water adjacent to Alaska.7 The restrictions were put in place to

protect the food source of the Stellar sea lion, an endangered species.8 The Plaintiffs challenge

the restrictions under a number of federal statutes, including the Magnuson-Stevens Fishery

1
See, e.g., Dkt. 51. On March 2, 2011, the Court entered an order proposed by the Parties
partially consolidating the three above-captioned actions and providing, among other things, that
all future filings are to be made in the docket for Case No. 3:10-cv-00271-TMB. See Dkt. 36.
All docket citations refer to the docket in Case No. 3:10-cv-00271-TMB unless otherwise
specified.
2
Dkt. 58; Dkt. 60; Dkt. 62.
3
Dkt. 59.
4
Dkt. 36.
5
Dkt. 1.
6
Dkt. 1 in Case No. 3:11-cv-00001-TMB; Dkt. 1 in Case No. 3:11-cv-00004-TMB.
7
See Dkt. 1 ¶ 1; Dkt. 41 ¶ 2; Dkt. 45 ¶ 1.
8
See, e.g., Dkt. 1 ¶¶ 47-74.
2
Conservation and Management Act (“MSA”).9 The original Defendants consisted of various

federal officials and agencies (the “Federal Defendants”).10 All of the Plaintiffs’ Complaints

sought expedited consideration of their claims.11

On February 2, 2011, Oceana, Inc. and Greenpeace, Inc. (collectively, the “Oceana

Defendants”), filed a motion to intervene.12 The Oceana Defendants sought to intervene as of

right, or in the alternative, to intervene permissively.13 The existing parties took no position on

that motion.14 On March 9, 2011, after considering the submissions, the Court granted the

Oceana Defendants’ motion to intervene as of right.15

Also on February 2, 2011, the Federal Defendants requested an extension of time to file

the administrative record in light of the large volume of materials.16 In that submission, the

Federal Defendants noted that the Plaintiffs were reserving their rights to seek expedited review

under the MSA and that the Parties in all three actions were negotiating a briefing schedule.17

9
See id. ¶ 2; Dkt. 41 ¶ 3; Dkt. 45 ¶ 2.
10
See, e.g., Dkt. 1 ¶¶ 13-16.
11
Dkt. 1 at 32 (requesting “immediate injunctive relief, including temporary restraining order(s)
and/or preliminary injunction(s)”); Dkt. 39 at 37 (seeking expedited consideration pursuant to 16
U.S.C. § 1855(f)(4)); Dkt. 41 at 3, 37 (same).
12
Dkt. 17.
13
Id. at 1.
14
See Dkt. 38 at 3-4.
15
Id. at 5-10.
16
Dkt. 19.
17
See id. at 2, 4.

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On February 11, 2011, the Parties submitted a status report and requested a status conference.18

The report noted that the Plaintiffs were seeking expedited consideration of the cases so as to

allow time to implement any ruling before the commencement of the 2012 groundfishing season

on January 1, 2012.19 The Federal Defendants indicated that they did not oppose the Plaintiffs’

requests.20 The Parties further requested that the Court enter a proposed briefing schedule and

partially consolidate the cases.21 The Court subsequently held a status conference and granted

the Parties’ requests.22

On March 23, 2011, the Plaintiffs sought to modify the briefing schedule by extending

the deadlines by roughly one month in light of the large volume of materials and technical

difficulties involving the administrative record.23 The Court granted Plaintiffs’ motion on March

31, 2011.24 Plaintiffs’ opening briefs are currently due on May 18, 2011,25 however, the Parties

recently filed a stipulation indicating that the Federal Defendants have continued to supplement

the administrative record and that the briefing schedule may have to be revised further.26

18
See Dkt. 22.
19
Id. at 3.
20
Id.
21
See id. at 4-7.
22
See Dkt. 23; Dkt. 28; Dkt. 29; Dkt. 36.
23
Dkt. 48.
24
Dkt. 55.
25
See Dkt. 68 at 2.
26
See Dkt. 70.

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 The Aleut Entities filed their motion to intervene on March 24, 2011.27 The motion

became ripe on April 21, 2011.28 The Aleut Entities allege that the Aleut Corporation is an

Alaska Native Corporation created pursuant to the Alaska Native Claims Settlement Act and that

Aleut Enterprise, LLC, is a subsidiary of Aleut Corporation.29 They further allege that the

restrictions will cause them to lose income from fuel sales in Adak, cause them to terminate

employees in Adak and Anchorage, drive up fuel and utility costs in Adak, cause tax revenues to

decline in Adak, cause their revenues and affiliates revenues to decrease, reduce airline service to

Adak, reduce their ability to fish for pollock in the Aleutian Islands and Bering Sea, and

negatively impact Aleut culture.30

II. LEGAL STANDARD

Under Rule 24(b), “[o]n timely motion the court may permit anyone to intervene who . . .

has a claim or defense that shares with the main action a common question of law or fact.” The

Rule further provides that “[i]n exercising its discretion, the court must consider whether the

intervention will unduly delay or prejudice the adjudication of the original parties’ rights.”31

Thus, an applicant seeking permissive intervention must establish that “the motion is timely” and

“the applicant’s claim or defense, and the main action, have a question of law or a question of

27
Dkt. 51.
28
See Dkt. 65.
29
Dkt. 53 ¶ 3.
30
Id. ¶¶ 5-17.
31
Fed. R. Civ. P. 24(b)(3).
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fact in common.”32 The Ninth Circuit has also previously indicated that an applicant for

permissive intervention must show “independent grounds for jurisdiction.”33

“Even if an applicant satisfies those threshold requirements, [however,] the district court

has discretion to deny permissive intervention.”34 Courts may consider a number of factors in

deciding whether to grant a motion to intervene under Rule 24(b), including:

[1] the nature and extent of the intervenors’ interest, [2] their standing to raise
relevant legal issues, [3] the legal position they seek to advance, and its probable
relation to the merits of the case, [4] whether changes have occurred in the
litigation so that intervention that was once denied should be reexamined, [5]
whether the intervenors’ interests are adequately represented by other parties, [6]
whether intervention will prolong or unduly delay the litigation, and [7] whether
parties seeking intervention will significantly contribute to full development of
the underlying factual issues in the suit and to the just and equitable adjudication
of the legal questions presented.35

III. DISCUSSION

The Federal Defendants argue that the Aleut Entities should not be permitted to intervene

because their claims are barred by the MSA’s statute of limitations.36 The MSA provides that

regulations promulgated pursuant to that Act are subject to judicial review, “if a petition for such

review is filed within 30 days after the date on which the regulations are promulgated or the

32
Perry v. Proposition 8 Official Proponents, 587 F.3d 947, 955 (9th Cir. 2009).
33
Proposition 8 Official Proponents, 587 F.3d at 955; Southern Cal. Edison Co., v. Lynch, 307
F.3d 794, 803 (9th Cir. 2002) (citation omitted), modified on other grounds, 307 F.3d 943 (9th
Cir. 2002); but cf. Center for Biological Diversity v. Lubchenco, No. 09-04087 EDL, 2010 WL
1038398, at *9 (N.D. Cal. Mar. 19, 2010) (“[T]he caselaw is not entirely uniform as to whether
an independent jurisdictional basis is an absolute requirement for permissive intervention.”).
34
Lynch, 307 F.3d at 803 (quoting Donnelly v. Glickman, 159 F.3d 405, 412 (9th Cir. 1998)).
35
Perry v. Schwarzenegger, 630 F.3d 898, 905 (9th Cir. 2011) (quoting Spangler v. Pasadena
Bd. of Educ., 552 F.2d 1326, 1329 (9th Cir. 1977)).
36
Dkt. 59.

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action is published in the Federal Register, as applicable[.]”37 The Federal Defendants argue that

this provision must be strictly construed to preclude jurisdiction over the Aleut Entities’

proposed claims here.38

The Parties do not dispute that the Interim Final Rule was promulgated on December 13,

2010.39 It is also undisputed that the three current sets of Plaintiffs all filed their actions within

30 days as required by the MSA.40 The Aleut Entities argue that their claims are not barred

because their claims “relate back” to the filing of the three consolidated actions filed by the

existing Plaintiffs.41

The only decision cited by the Parties that is directly on point is New York v. Gutierrez,42

where the Eastern District of New York found that the proposed Rule 24(a) intervenors’ claims

related back to the plaintiffs’ complaint in an MSA action. The Court noted that one of the

Plaintiffs, the State of New York, had brought the action “as parens patriae, on behalf of its

citizens,” and therefore it found that the proposed intervenors, who had “protectable interests”

under Rule 24(a), were “the real parties in interest plaintiff New York seeks to protect.”43 The

37
16 U.S.C. § 1855(f)(1).
38
Dkt. 59 at 4-9.
39
See Dkt. 59 at 1; Dkt. 65 at 3.
40
Dkt. 59 at 2; Dkt. 65 at 4.
41
Dkt. 65 at 5, 7.
42
No. 08-CV-2503 (CPS)(RLM), 2008 WL 5000493, at *13 (E.D.N.Y. Nov. 20, 2008).
43
Id.
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Federal Defendants argue that this decision was wrongly decided44 and is inconsistent with

authority within this Circuit.45

Regardless of whether the Court has jurisdiction over the Aleut Entities’ proposed claims,

this debate underscores the problems with their request. This case already involves numerous

Plaintiffs who undisputedly filed their claims in a timely fashion. The Aleut Entities did not seek

to intervene until well over three months had passed.46 Although that may not sound like much

in the context of a typical litigation, the existing Parties have repeatedly requested “expedited”

treatment and the case is moving at a relatively fast pace considering the size of the

administrative record at issue. Adding parties as full participants in the litigation who could not

bring a separate action on their own can only serve to prolong the case and prejudice the existing

Parties in their effort to resolve this case in an expedited manner.

Moreover, as they repeatedly point out, 47 the claims that the Aleut Entities seek to assert

are very similar – if not identical – to those of the existing Plaintiffs. Those Plaintiffs are

seeking the same ultimate outcome that the Aleut Entities seek and will likely make the same

legal and factual arguments that the Aleut Entities would. Indeed, the current Plaintiffs have

already noted many of the alleged harms that the Aleut Entities claim will befall Adak and the

44
Dkt. 59 at 12.
45
Id. at 4-9.
46
Indeed, they also acknowledge that they filed comments on the Interim Final Rule on January
19, 2011, Dkt. 65 at 3, two months before moving to intervene here.
47
Dkt. 52 at 2 (indicating that they are merely seeking “to join in” the existing challenges to the
restrictions, “not assert separate claims”); id. at 9-10 (discussing the similarity of the Aleut
Entities’ proposed claims with the State of Alaska’s claims); Dkt. 65 at 4 (indicating that the
Aleut Entities “do not seek to add any new claims [or] any additional liabilities”); id. at 6 n.3
(stating that the existing Plaintiffs “all . . . share the same claims and interests in the commercial
fishing industry as the Aleuts here”).

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surrounding communities of the Aleutian Islands due to the restrictions.48 The Aleut Entities

have failed to persuade the Court that their interests are not adequately represented by the

existing Parties or that they will materially contribute to the full development of the underlying

issues.

Accordingly, apart from the significant jurisdictional question, the Court finds that the

Aleut Entities have similar interests to the existing Parties, that the Aleut Entities’ interests are

adequately represented by the existing parties, that their intervention would prolong the

litigation, and that their intervention will not significantly contribute to full development of the

underlying factual issues in the suit or the just and equitable adjudication of the legal questions

presented. The Court consequently exercises its discretion to deny the Aleut Entities’ request for

permissive intervention. To the extent that the Aleut Entities believe there are relevant points

that the Plaintiffs in this action will fail to raise, they may raise them as amici curiae.49

IV. CONCLUSION

For the foregoing reasons, the Aleut Entities motion to intervene (Docket No. 51) is

DENIED. The Aleut Entities may participate as amici curiae by filing a brief of no more than

twenty-five (25) pages on or before May 18, 2011, or such other time as the Plaintiffs’ opening

summary judgment briefs are due. The Aleut Entities may also file a reply brief of no more than

ten (10) pages on or before August 18, 2011, or such other time as the Plaintiffs’ reply briefs are

due. The Aleut Entities shall confine their briefing to issues that they believe are not adequately

48
See Dkt. 1 ¶ 77; Dkt. 41 ¶ 71; Dkt. 45 ¶ 83.
49
See California Dep’t of Toxic Substances Control v. Commercial Realty Projects, Inc., 309
F.3d 1113, 1118 (9th Cir. 2002) (affirming district court’s denial of untimely motion to intervene
where the proposed intervenors’ interests were adequately protected and “were more
appropriately addressed through amici curiae status”).

9
addressed by the existing Parties and shall attempt to confer with the Plaintiffs so as to ensure

that they do not merely repeat the same arguments as the Plaintiffs.

Dated at Anchorage, Alaska, this 3rd day of May, 2011.

/s/ Timothy M. Burgess

TIMOTHY M. BURGESS
UNITED STATES DISTRICT JUDGE

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