Corrected.Motion.Intervene.BBM (March 18, 2014)

John Meyer, MT Bar # 11206
Cottonwood Environmental Law Center
24 South Willson Ave. Suites 6-7
Bozeman, MT 59715
(406) 587-5800 | phone
[email protected] Guy Alsentzer, MT Bar # 11147 Upper Missouri Waterkeeper, Inc. PO Box 128 Bozeman, MT 59771 (406) 570-2202 | phone [email protected] Attorneys for Proposed Plaintiff-Intervenor
MONTANA FOURTEENTH JUDICIAL DISTRICT COURT
MEAGHER COUNTY
EARTHWORKS, MONTANA
ENVIRONMENTAL INFORMATION
CENTER
Plaintiffs,
v.
MONTANA DEPARTMENT OF
ENVIRONMENTAL QUALITY and
TINTINA RESOURCES, INC.,
Defendants.
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Case No. DV-14-09
CORRECTED MOTION TO
INTERVENE
NOTICE
Upper Missouri Waterkeeper previously submitted a motion to intervene in DV-14-09 on
March 17, 2014. That motion contained a confusing typographic error within the introductory
section and did not include service of process to plaintiffs in the above captioned case. Upper
Missouri Waterkeeper submits this corrected motion for the benefit of all parties and the court.
INTRODUCTION
Upper Missouri Waterkeeper respectfully moves to intervene in the above captioned case,
which challenges the Montana Department of Environmental Quality’s approval of an
application to expand exploration activities at the Black Butte Copper Project. Upper Missouri
Waterkeeper is dedicated exclusively to protecting and improving the ecological and aesthetic
value of Southwest and West-Central Montana’s Upper Missouri River Basin for present and
future generations. No other organization works exclusively on water-quality issues throughout
the Upper Missouri River basin, which includes the Smith River watershed, its tributary Sheep
Creek, and the Black Butte Project area. Upper Missouri Waterkeeper utilizes a combination of
strong science, community action, and the law to protect the Upper Missouri River, its
tributaries, and communities.
Upper Missouri Waterkeeper is a grass-roots organization comprised of Montana citizens
that work to maintain and restore the water quality of western Montana’s rivers and streams.
Waterkeeper’s members rely on the rivers they protect—including the Smith—for their enjoyment
and livelihood. The Smith River is coveted for its pristine recreation opportunities—to the point
where it is not unusual for Montanans to wait a year more before winning a permit lottery to float
and fish the river. Approval of the amended Black Butte Project license authorizes Tintina Resources
Inc., a Canadian corporation, to discharge toxic and carcinogenic chemicals into groundwater that is
hydrologically connected to Sheep Creek and the Smith River. The expansion threatens to
significantly impact Sheep Creek, the Smith River and the watershed they create.
Pursuant to its obligations under the Montana Environmental Policy Act, the Montana
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Department of Environmental Quality (“DEQ”) issued a draft Environmental Assessment on the
amended license proposal and received public comments until August 26, 2013. Upper Missouri
Waterkeeper asked the Montana DEQ to disapprove the Project and complete further analysis in the
form of an Environmental Impact Statement. The DEQ refused, and Upper Missouri Waterkeeper
nows seeks to intervene in this action because the agency violated numerous environmental statutes
and Montana’s Constitution by approving the application to amend Tintina’s exploration license for
the Black Butte Project.
ARGUMENT
I. Upper Missouri Waterkeeper is Entitled to Intervene as a Matter of Right.
Rule 24(a)(2), Mont. R. Civ. P., provides: “On timely motion, the court must permit
anyone to intervene who . . . claims an interest relating to the property or transaction which 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 the existing parties adequately
represent that interest.” This rule is interpreted liberally in order to “promote efficiency and
avoid delay and multiplicity of suits.” Sportsmen for I-143 v. District Court, 2002 MT 18, ¶ 7,
308 Mont. 189, 40 P.3d 400; Continental Ins. Co. v. Bottomly, 233 Mont. 277, 280, 760 P.2d 73,
76 (1988).
Here, Applicant meets this standard.
a. Intervention is Timely
There is no question that this motion to intervene is timely as Upper Missouri
Waterkeeper filed this motion shortly after the lawsuit was filed.
b. Upper Missouri Waterkeeper has an Interest in the Subject Matter of this Case.
To intervene as a matter of right, an applicant must “claim an interest relating to the . . .
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transaction which is the subject of the action.” Mont. R. Civ. P. 24(a)(2). This requires the
applicant to make a “prima facie” showing of a “direct, substantial, legally protectable interest in
the proceedings.” DeVoe v. State, 281 Mont. 356, 362, 935 P.2d 256, 260 (1997) (quoting
Aniballi v. Aniballi, 255 Mont. 384, 387, 842 P.2d 342, 344 (1992)). Public interest groups have
an interest sufficient to satisfy this standard where the “groups were directly involved in the …
administrative proceedings out of which the litigation arose.” Nw. Forest Resource Council v.
Glickman, 82 F.3d 825, 837 (9th Cir. 1996); accord Sportsmen for I-143, ¶ 12; United States v.
Carpenter, 526 F.3d 127, 1240 (9th Cir. 2008) (environmental organizations’ “interest in use and
enjoyment of the unique aesthetic environment of [a] wilderness area” “was sufficient to allow
them to intervene” under parallel federal rule).
Upper Missouri Waterkeeper satisfies this standard because it submitted timely
comments to the Montana DEQ urging the agency to deny the proposed application and require
further environmental review. Thus, Upper Missouri Waterkeeper has a legally protectable
interest in this case, satisfying the second requirement for intervention of right.
c.
Upper Missouri Waterkeeper’s Interests May Be Impaired by
Disposition of this Matter.
Here, as a practical matter, disposition of this case may impair or impede Applicant’s
interest in protecting the water quality of Sheep Creek, the Smith River, and other seeps and
springs impacted by toxic pollution from the expanded exploration activities at the Copper
Project. Upper Missouri Waterkeeper submitted comments objecting to the approval of the
application to expand exploration the Copper Project. Nevertheless, DEQ approved the
application. If this exploration permit is upheld, Upper Missouri Waterkeeper’s interests in
protecting these waterways will be impaired. Thus, Waterkeeper satisfies the third requirement
for intervention of right.
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d. Upper Missouri Waterkeeper’s Interest Is Not Adequately Represented.
The final requirement for intervention of right requires potential intervenors to show that
their interest in the pending matter will not be adequately represented by the existing parties.
This requirement is satisfied if the applicant shows “that the representation of its interests ‘may
be’ inadequate and the burden of this showing is minimal.” Sportsmen for I-143, ¶ 14.
Upper Missouri Waterkeeper’s interests may not be adequately represented by the
Plaintiffs in this action. For unspecified reasons, Plaintiffs asked that Waterkeeper not be an
original party in this suit. Thus, Applicant cannot be sure that the Plaintiffs will adequately
represent its interests and Waterkeeper has therefore satisfied this minimal burden. See id.
II. Upper Missouri Waterkeeper Meets the Standard for Permissive Intervention
A court may permit anyone to intervene in a matter under Montana Rule of Civil Procedure
24(b) if the applicant “has a claim or defense that shares with the main action a common question of
law or fact.” In addition, permissive intervention must be timely. Connell v. State, 2003 MT 361,
¶28, 319 Mont. 69, 81 P.3d 1279.
First, Upper Missouri Waterkeeper’s complaint in Intervention demonstrates that it has
claims that share common questions of fact or law with the claims alleged in Plaintiffs’ complaint.
Second, Applicant’s motion to intervene is timely because it was filed shortly after the complaint.
Montana Rule of Civil Procedure 24 is a “judicial efficiency rule. It is used to avoid delay,
circuity and multiplicity of actions.” In re Marriage of Glass, 215 Mont. 248, 253, 697 P.2d 96, 99
(1985) (citation omitted). Granting Upper Missouri Waterkeeper’s motion to intervene will further
those goals by obviating the need for Upper Missouri Waterkeeper to file a separate lawsuit alleging
claims that share common questions of law and fact.
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CONCLUSION
For the foregoing reasons, Upper Missouri Waterkeeper respectfully requests that the Court
grant its motion to intervene.
Respectfully submitted this 18th Day of March, 2014.
/s/ John Meyer
JOHN MEYER
Cottonwood Environmental Law Center
24 South Willson Ave. Suites 6-7
Bozeman, MT 59715
(406) 587-5800
[email protected]
Guy Alsentzer, MT Bar # 11147
Upper Missouri Waterkeeper, Inc.
PO Box 128
Bozeman, MT 59771
(406) 570-2202 | phone
[email protected]
Attorneys for proposed Intervenor-Plaintiff
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CERTIFICATE OF SERVICE
I certify that on March 18th, 2014, I sent a copy of this corrected Motion and the
Complaint in Intervention to the following parties by First Class Mail:
John North, Chief Legal Counsel
Montana Department of Environmental Quality
Lee Metcalf Building, Main Office
1520 East Sixth Avenue
P.O. Box 200901
Helena, MT 59620-0901
CSC of Montana, Inc.
Registered Agent
Tintina Alaska Exploration, Inc.
33 S Last Chance Gulch
Helena, MT 59601-0000
Jenny K. Harbine
Earthjustice
313 East Main St.
Bozeman, MT 59715
[email protected]
/s/ Guy Alsentzer
GUY ALSENTZER
Upper Missouri Waterkeeper, Inc.
PO Box 128
Bozeman, MT 59771
[email protected]
406.570.2202
Attorney for Proposed Intervenor-Plaintiff
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