Civ. No. 1:00CV01718- GK

v.

ROBERT L. MALLETT, et al.,
Defendants.
__________________________________________

MEMORANDUM OF POINTS AND AUTHORITIES SUPPORTING MOVANT FISHERIES SURVIVAL FUND’S MOTION TO INTERVENE IN THIS ACTION

I. INTRODUCTION

Movant, the Fisheries Survival Fund (“FSF”), respectfully submits this Memorandum of Points and Authorities in support of its Motion to Intervene as of right under Fed. R. Civ. P. 24(a)(2) or, in the alternative, permissibly under Fed. R. Civ. P. 24(b).  In the event its Motion to Intervene is not granted or is deferred, FSF has also moved to be able to submit memoranda as an amicus curiae in response to the Plaintiffs' motions for relief in this action, including, but not limited to, their pending Motion for Preliminary Injunction.

Founded in March of 1998, FSF's participants now include well over 120 full-time Atlantic sea scallop permit holders from southern New England down through New Jersey and Virginia.  See Declaration of Marjorie J. Orman (hereafter, “Orman Dec.”), 3 (attached hereto as Exhibit 1).  Many of FSF's participants' families have been fishing for generations.  Id. at 7.  Since its formation, the FSF has sought to enhance the information and techniques used by the Defendants to rebuild the Atlantic sea scallop fishery pursuant to the Sustainable Fisheries Act of 1996 and to preserve the fishery's economic existence.  Id. at 4, 15, 20-27, 34-39, 42, 49-52, 62-66, 84-85, 94-95.

The Conservation Law Foundation and the American Oceans Campaign (collectively, “Plaintiffs”) have brought this action to set aside Framework Adjustments 12 and 13 to the Atlantic Sea Scallop Fishery Management Plan ("Scallop FMP").  Defendants developed and implemented Framework Adjustments 12 and 13 to govern important aspects of the Atlantic sea scallop fishery during the fishing year running from March 1, 2000, through February 28, 2001.  The sources of jurisdiction alleged are the judicial review provisions of the National Environmental Policy Act (“NEPA”), 45 U.S.C. § 4321 et seq., and the Administrative Procedure Act’s (“APA”) judicial review provisions, 5 U.S.C. §§ 701 et seq.

The relief Plaintiffs seek would have an absolutely devastating – actually bankrupting – effect on the Atlantic sea scallop industry.  Orman Dec., at  12-15, 72, 75-77.  In addition, such relief would retard the progress of Atlantic sea scallop rebuilding because it would force scallop fishermen to continue to direct their fishing efforts onto relatively heavily fished scallop areas where scallops should be provided a better opportunity to grow and reproduce.  Id. at  27-33, 60.  FSF seeks to intervene in this action to protect its participants' demonstrated interests in the continued economic viability and ecological sustainability of their scallop fishing operations, and to protect their interests in the full-time scallop permits they have been issued by NMFS.  Id. at   4, 12-15, 26-35, 75-77, 89, 97.  FSF knows full well that its participants' continued economic existence in the scallop fishery and in the economic value of their scallop fishing permits is inextricably linked to the development of the kind of well-informed and carefully conceived techniques to manage the scallop fishery represented by Framework Adjustments 12 and 13.   Id. at  4, 16, 26-32, 34-36, 71, 76-77, 78-89, 97.

A. Regulatory Regime

On March 29, 1999, the Secretary of Commerce, acting through his designees at the National Oceanic and Atmospheric Administration (“NOAA”) and the National Marine Fisheries Service (“NMFS”) (collectively, “Defendants”), approved and implemented, upon the recommendation of the New England Fishery Management Council (“NEFMC” or the “Council”), Amendment 7 to the Atlantic Sea Scallop Fishery Management Plan (the “Scallop FMP”).  See 64 Fed. Reg. 14835 (Mar. 29, 1999) (promulgating regulations implementing Amendment 7).  Defendants promulgated Amendment 7 pursuant to Sustainable Fisheries Act's requirement for the accelerated rebuilding of fish stocks, such as the Atlantic sea scallop stocks, which Defendants conclude are overfished.  See 16 U.S.C. § 1854(e).  Accordingly, Amendment 7 set forth a rebuilding plan for Atlantic sea scallops, which was intended to rebuild the stocks of Atlantic sea scallops by 2008.  See 64 Fed. Reg. 14835 (Mar. 29, 1999).

Pursuant to Amendment 7, full-time Atlantic sea scallop permit holders were allowed 120 days-at-sea (“DAS”) for fishing during fishing year 1999-2000, which would then be cut to 51 DAS in fishing year 2000-01.  Defendants implemented Amendment 7 knowing that its prescribed 51 DAS level for fishing year 2000-01 and subsequent additional DAS reductions for the remainder of its rebuilding schedule would bankrupt the Atlantic sea scallop fishing industry.  Orman Dec.  14.  The scallop industry realized that Amendment 7 would provide for their certain economic demise as well.  Orman Dec. at  13, 15.

Amendment 7 was never intended to be a static management regime, however.    Amendment 7 and its implementing regulations specifically contemplated that its schedule of DAS allocations would be adjusted (up or down), pursuant to a regulatory device known as a framework adjustment, if new information about scallop stocks so warranted.  See 50 C.F.R. § 648.55; Orman Dec.  36.  As the Court can well imagine, this opportunity is why the Movant has been working so hard to assist Defendants and other scientists to gather information and data regarding scallop stocks and the extent of scallop rebuilding, and to integrate that data into updated DAS allocations.  See Orman Dec.  16, 20-24, 34-40, 42, 62-65, 67-68, 70-71. Amendment 7 identified the development of rotational fishing methods as a way to enhance scallop rebuilding with a reduced economic impact on scallop fishermen. See, e.g.,  63 Fed. Reg. 70093, 70094  (Proposed Rule); 50 C.F.R. § 648.55.  FSF has put the same type of effort into developing rotational scallop management techniques that achieve an array of conservation goals (bycatch minimization and reduction, reduction of habitat interactions), as well as scallop fishery rebalancing and rebuilding.  Orman Dec.,  20-33, 42, 48, 49-58, 60-67, 70-71, 78-88, 91-95.

Framework Adjustment 12 permits full-time scallop fishermen to have 120 days DAS to be away from port to scallop fish during fishing year 2000-01.  The 120 DAS allocation does not represent an unprecedented or unknown level of scallop fishing. Amendment 7 allocated full-time scallop fishermen 120 DAS to fish in fishing year 1999-2000.  64 Fed. Reg. 14835, 14836; Orman Dec.,  13.  Thus, Framework Adjustment 12 simply continued the status quo.  Moreover, when considered in context, the 120 DAS allocation represents a significant reduction from the number of days that full-time scallop vessels had historically fished.  Id. at  72.

In actuality, it would instead have been unprecedented if Defendants had proceeded to implement Amendment 7's original prescription of 51 DAS for fishing year 2000-01.  Defendants unequivocally stated in the Amendment 7 rulemaking, and FSF concurs, that scallop fishermen simply cannot survive economically on 51 DAS per year, not to mention on the lower allocations of DAS Amendment 7 prescribes for subsequent years.  See Orman Dec.,  12-14.  It is critical to recognize that Defendants did not adjust the Amendment 7 DAS schedule for fishing year 2000-01 as a act of grace for the scallop fishing industry.  Rather, they did so because scallop rebuilding is proceeding ahead of Amendment 7's original schedule.  See 65 Fed. Reg. 11478 (Mar. 3, 2000) (implementing Framework Adjustment 12); see also Orman Dec.,  38.

For its part, Framework Adjustment 13 helps scallop stocks rebuild and achieves other conservation objectives identified above. Defendants issued Framework Adjustment 13 to the Scallop FMP on June 19, 2000.  See 65 Fed. Reg. 37903.  Framework Adjustment 13 allows Atlantic sea scallop fisherman temporary access to the Georges Bank Groundfish Closed Areas for fishing year 2000-01 only.  65 Fed. Reg. at 37912 (codified at 50 C.F.R. § 648.55 (b)).  The openings permitted by Framework Adjustment 13 enhance scallop rebuilding efforts under Amendment 7 because they direct scallop fishing effort onto larger scallops and, consequently, away from less dense populations of scallops in the areas outside the Georges Bank Closed Areas that have been determined to have been overfished.  See 65 Fed. Reg. at 37904; Orman Dec.  28-34, 60.  These concentrations of scallops exist in the Closed Areas because there has been no scallop fishing in the Georges Bank Closed Area I and the Nantucket Lightship Closed Area since 1994 and only very limited scallop fishing in Georges Bank Closed Area II in 1999.   See id. at  21, 84, 89.

Defendants have not developed and implemented the openings in a cavalier manner.  Rather, Framework Adjustment 13 represents a very limited opportunity for Atlantic sea scallop fishermen to fish on relatively large concentrations of large scallops in certain discrete sections of the Georges Bank Groundfish Closed Areas.  65 Fed. Reg. at 37904;  Orman Dec.,  78-88.  Defendants selected the times of each opening, the areas within the Closed Areas designated for opening, and the conditions of each opening were chosen with habitat and groundfish conservation and closed area enforcement considerations specifically in mind.  Id. at  69, 81-84.

The information gathered, analyses conducted, and decisions made in connection with the development and implementation of Framework Adjustments 12 and 13 were matters of intense scientific review that were subject to detailed public consideration and debate in forum after forum, meeting after meeting.  See, e.g., 65 Fed. Reg. at 37906 (schedule of meetings for Framework Adjustment 13); see also Orman Dec.,  70.

FSF has been permitted to intervene in federal district court in an action challenging Defendants’ efforts to improve sea scallop conservation management, and data collection efforts.  Orman Dec.,  43.  FSF’s one hundred twenty-plus participants have full-time permits issued by Defendants to fish for sea scallops in the Atlantic.  Orman Dec.,  3.  Ecologically balanced and economically viable scallop conservation and management measures represent absolutely critical and cognizable interests of FSF and its participants.  See id. at  4, 15, 20-32, 36, 71, 76-78, 89-94.  As explained above, FSF was formed during the relatively preliminary stages of Amendment 7's development, at a time when it became evident that drastic effort was going to be necessary to preserve the Atlantic sea scallop fishery.  Orman Dec.  12-16.  The FSF did not organize itself simply to be an advocacy organization.  Id. at  4.  By March of 1998, it was too late for words.

Accordingly, from its very inception, the FSF and its participants have worked with federal and university scientists to obtain authorization for and to develop and implement techniques to collect improved information about scallop stocks and habitat that would support rotational fishing such as Framework Adjustment 13 represents.  Id. at  20-34, 42, 62-66.  In addition, as explained above, updated information about the extent of scallop rebuilding was required to support the economically necessary adjustment to the Amendment 7 DAS schedule contained in Framework Adjustment 12.  See, e.g., Orman Dec.,  36, 38.

The FSF also has worked to translate this new information into concrete measures.  The FSF has prepared and presented detailed proposals on how to better manage and rebuild the scallop fishery, both via increases in DAS consistent with scallop rebuilding goals and through the development and implementation of rotational fishery proposals and approaches.  Id. at  40-41, 52, 85, 88, 94-95.  The FSF has actively promoted conservation efforts relating to the matter at suit.  Id. at  61.  As befits the importance of these matter to FSF and its participants, FSF believes that it has participated in every public meeting convened by federal fisheries managers  (there were well over a score) involved in the development of these two framework adjustment measures at suit in this action  (id. at  70), just as FSF has done for other scallop conservation and management measures.   Id. at  49, 93.  For these reasons, FSF believes that its efforts assisted materially in the development of the economically necessary and ecologically beneficial and warranted Framework Adjustments 12 and 13.

Plaintiffs filed the above-captioned action seeking declaratory, mandatory, and injunctive relief against the Secretary of Commerce and his designees at NOAA and NMFS on July 20, 2000.  In summary, Plaintiffs claim that Defendants, prior to developing, approving and implementing Framework Adjustments 12 and 13, failed to conduct an adequate environmental analysis under NEPA, in order to determine the effects of those measures on the habitat, groundfish, and other fish species in the areas of the Atlantic currently open to scallop fishing, as well as those areas that have been closed to such fishing for the past five years.  See Complaint, at 35.  In addition, Plaintiffs contend that the Defendants’ implementation of Framework Adjustments 12 and 13 were arbitrary and capricious and, therefore, in violation of the APA.  Id.

In its Prayer for Relief, Plaintiffs request that this Court: (1) declare that the Defendants violated NEPA and the APA by approving Framework Adjustments 12 and 13 to the Scallop FMP; (2) set aside Framework Adjustments 12 and 13 and prohibit Defendants from deciding whether to increase fishing effort above the levels provided for in Amendment 7 to the Scallop FMP until Defendants comply fully with NEPA and the APA; and (3) prohibit Defendants from deciding whether to allow scalloping in the closed areas until they first comply with NEPA and the APA.

Simply put, the relief Plaintiffs seek would represent the very economic disaster for FSF's participants that the organization has dedicated its efforts to preventing from the organization's inception, in that it seeks the return of DAS for fishing year 2000-01 to Amendment 7's bankrupting level of 51 DAS and, to make matters worse, it would do so in the middle of the fishing year after DAS have been used.  Id. at   12-14, 76-77.  In addition, the relief sought would vitiate the important year 2000 Georges Bank Groundfish Closed Area rotational fisheries for which Movant advocated and worked.  Orman Dec.,  26-33, 39-43, 46-48, 61-67, 70, 78-89.  Consequently, it is imperative that FSF be allowed to intervene in this action to assert and protect its participants’ interests.

A. FSF HAS SATISFIED THE STANDARDS FOR INTERVENTION OF RIGHT

1.  Standards for Intervention of Right

Fed. R. Civ. P. 24(a)(2) establishes and delimits an applicant's ability to intervene “as of right.”  It states: Upon timely application, anyone shall be permitted to intervene in an action . . . (2) when 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 as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.

Based on Rule 24(a)(2), courts explain that an intervenor must meet four requirements:

1)  the application to intervene must be timely, 2) the party must have an interest relating to the property or transaction which is the subject of the action, 3) the party must be so situated that the disposition of the action may, as a practical matter, impair or impede the party's ability to protect that interest, and 4) the party's interest must not be adequately represented by existing parties to the action. Building and Construction Trades Dep't, AFL-CIO v. Reich, 40 F.3d 1275, 1282 (D.C. Cir. 1994) (relying on Nuesse v. Camp, 385 F.2d 694, 699 (D.C. Cir. 1967).

“The D.C. Circuit has taken a liberal approach to intervention.”  The Wilderness Society v. Babbit, -- F.2d --, 2000 WL 973342 (D.D.C. 2000) (citing NRDC v. Costle, 561 F.2d 904, 910-911 (D.C.Cir. 1977)).  Indeed, in Nuesse, a seminal case in the development of Rule 24(a)(2) caselaw in this Circuit, the D.C. Circuit emphasized that the standards for intervention must be interpreted flexibly (i.e., "require other than literal application") and consistent with the 1966 broadening of the standards for intervention of right, in resolving applications to intervene filed in actions seeking judicial review of administrative action.  385 F.2d at 178-79 (granting application of Wisconsin state banking commissioner in action involving federal Comptroller's decision regarding applications for federal bank branches).

In this regard, district courts in this Circuit have permitted industry groups to intervene as defendants in lawsuits filed by environmental groups against government agencies challenging regulatory decisions.  See Huron Environmental Activist League v. EPA, 917 F.Supp. 34 (D.D.C. 1996); Natural Resources Defense Council, Inc. v. EPA, 99 F.R.D. 607 (D.D.C. 1983).  In fact, claims by environmental groups that have suggested that industry groups cannot intervene as defendants in a NEPA case have been rejected in this Circuit.  See The Wilderness Society, 2000 WL 973342, *6.

i. FSF’s Application is Timely

With respect to the first element – the timeliness of the movant’s application for intervention – courts are instructed to consider all related circumstances, including “the amount of time elapsed since the suit was filed, the purpose of intervention, the need to preserve the applicant’s rights, and the probability of prejudice to existing parties.”  People for the Ethical Treatment of Animals v. Babbitt, 151 F.R.D. 6, 7 (D.D.C. 1993) (citing United States v. American Tel. & Tel. Co., 642 F.2d 1285, 1295 (D.C.Cir. 1980)).

The Fifth Circuit recently explained that the analysis of timeliness: . . . is contextual; absolute measures of timeliness should be ignored. . . .  The requirement of timeliness is not a tool of retribution to punish the tardy would-be intervenor, but rather a guard against prejudicing the original parties by the failure to apply sooner. . . .  Federal courts should allow intervention "where no one would be hurt and greater justice could be attained."Sierra Club v. Espy, 18 F.3d at 1205 (citations omitted).

FSF has acted well in advance of any judicial decision in this action.  FSF filed its application to intervene within one week of the filing of Plaintiffs’ complaint. Moreover, FSF will abide by court scheduling deadlines.  Accordingly, granting FSF’s motion to intervene will not prejudice any of the current parties to this litigation. See Natural Resources Defense Council, Inc., 561 F.2d 904, 907 (D.C.Cir. 1977) (holding that motion to intervene timely in light of purpose of motion and lack of prejudice to parties).

ii. FSF Has a Sufficient Interest Relating to the Subject Matter in this Action To Warrant Intervention

With respect to the second intervention prong – the interest test – this Circuit has concluded that the interest test  “is primarily a practical guide to disposing of lawsuits by involving as many apparently concerned persons as is compatible with efficiency and due process.”  Nuesse, 385 F.2d at 700.  In this regard, an applicant for intervention under Rule 24(a)(2) “must satisfy the same requirements for Article III standing as the original parties.”  Tripp v. Executive Office of the President, 2000 WL 964057, *1 (D.D.C. 2000) (citing Building and Const. Trades Dept. v. Reich, 40 F.3d 1275, 1282 (D.C.Cir. 1994)).  Thus, satisfaction of Article III standing requirements should perforce satisfy the interest standard set forth in Rule 24(a)(2).  See, e.g., Yniguez v. Arizona, 939 F.2d 727,  735 (9th Cir. 1991) ("because the Article III standing requirements are more stringent than those for intervention under rule 24(a), [the] determination that [the applicants] have standing under Article III compels the conclusion that they have an adequate interest under the rule") (quoted in Coalition of Arizona/New Mexico Counties for Stable Economic Growth v. Department of Interior, 100 F.3d 837, 842 (10th Cir. 1996)).

Courts in this Circuit have found that industry groups have a sufficient interest to intervene in litigation brought by environmental groups against government agencies to challenge regulatory decisions made by these agencies.  The Wilderness Society v. Babbitt, -- F.Supp.2d. --, 2000 WL 973342 (D.D.C. 2000); Huron Environmental Activist League v. EPA, 917 F.Supp. 34, 42 (D.D.C. 1996); Natural Resources Defense Council, Inc. v. EPA, 99 F.R.D. 607, 609 (D.D.C. 1983).  In Natural Resources Defense Council, for example, industry groups representing pesticide manufacturers sought to intervene in an action brought by an environmental group requesting that the court set aside a series of EPA regulatory decisions reached pursuant to approximately seven years of meetings with the industry representatives, and to enjoin the implementation of such measures.  Regarding the industry groups’ interest in the litigation, the court concluded:

Here, the intervenors have shown the requisite interest in the litigation.  Plaintiffs’ complaint challenges procedures pursuant to which EPA reached preliminary decisions that the intervenors’ pesticide products merited continued registration.  If plaintiffs succeed in this case, these regulatory decisions, which are obviously in the intervenors’ interests, will be set aside.  Thus, the intervenors can be said to have a substantial and direct interest in the subject of this litigation. 99 F.R.D. at 609.

Similarly, in Huron Environmental Activist League, the court held that an industry group representing cement workers had demonstrated a sufficient interest to intervene as of right, since, if plaintiff environmental group prevailed, “the defendant would be enjoined from relying in any way on the product of its meetings with various industry representatives.”  917 F.Supp. at 42.

If these Plaintiffs succeed, this Court would likewise set aside regulatory decisions – Framework Adjustments 12 and 13 – that are “obviously in the intervenors’ interests” and regarding which Movant has been working.  As explained above, FSF has been permitted to intervene in an action seeking to block implementation of the Georges Bank Closed Area II sampling program on which FSF was working at the time.

In addition, federal courts across the country have issued detailed opinions permitting industry trade associations and industry participants to intervene as of right in cases brought by environmental groups "seeking more extensive regulation by a public agency" of these industries' productive use of natural resources.  See, e.g., Conservation Law Foundation v. Mosbacher, 966 F.2d 39 (1st Cir. 1992)(reversing district court's decision denying commercial fishermen's association's application to intervene as of right in environmental groups' lawsuit requesting stricter controls on Northeast groundfish fishing); Kleissler v. United States Forest Service, 157 F.3d 964 (3rd Cir. 1998) (permitting industry and community groups with a financial stake in National Forest logging operations to intervene as of right in suit by environmental group to enjoin logging activity pending compliance with the National Environmental Policy Act); Sierra Club v. Glickman, 83 F.3d 106 (5th Cir. 1996) (permitting trade association representing farmers to intervene as of right in a suit to restrict pumping of water from an aquifer for, among other things, these farmers' use); Sierra Club v. Espy, 18 F.3d 1202 (5th Cir. 1994) (permitting timber purchasers to intervene in action challenging U.S. Forest Service logging regulations).  The same considerations attend here.

Moreover, FSF members have a legitimate interest in the continued use of their full-time Atlantic sea scallop permits to warrant intervention as of right.  As stated above, FSF's members have been issued permits to conduct full-time fishing for sea scallops in the Atlantic.   Ownership of a permit, the use of which is at issue in this litigation, represents a protectable interest.  See Sierra Club v. United States Env. Protection Agency, 995 F.2d 1478, (9th Cir. 1993) (finding a sufficient interest relating to the subject matter by “permit-holding property owners . . . where the statute directly regulates their conduct”).  "[W]hen, as here, the injunctive relief sought by plaintiffs will have direct, immediate, and harmful effects upon a third party's legally protectable interests, that party satisfies the 'interest' test of Rule 24(a)(2) . . . ."  See Forest Conservation Council v. U.S. Forest Service, 66 F.3d 1489, 1494 (9th Cir. 1995) (permitting community organizations deriving an economic return from logging activities to intervene as of right in an environmental organization's suit to limit and enjoin these logging activities); see also Nuesse, 385 F.2d at 699.

Moreover, in the seminal decision regarding Article III standing to bring Administrative Procedure Act based claims, the Supreme Court held that the relevant inquiry under Article is "whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question."  Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153 (1970) (emphasis added).  Movant's members are definitely "regulated by" the statutes at issue herein. The Supreme Court has further explained that "those who use the land [here, the ocean] in question and allege injury to aesthetic, conservational, and recreational, as well as economic values have legally protectable interests."  Sierra Club v. Morton, 405 U.S. 727, 738 (1972).    As the First Circuit explained in Conservation Law Foundation, . . . [T]he adverse effect is certain.  The fishing groups seeking intervention are the real targets of the suit and are the subjects of the regulatory plan.  Changes in the rule will affect the proposed intervenors' business, both immediately and in the future. 966 F.2d at 43.

In an analogous case, the D.C. Circuit held that a trade association representing industry members had standing to challenge federal actions which affected their economic interests and fell with the “zone of interest” contemplated by the controlling law.  See National Coal Ass’n v. Hodel, 825 F.2d 523, 526-27 (D.D.C. 1987) (trade association of coal producers had standing under Mineral Leasing Act to challenge decision by Secretary of Interior when the association alleged competitive injury and fell within the Act’s “zone of interest”).

Associations of commercial fishermen and those representing them have been held to have Article III standing with respect to regulations implementing fishery conservation and management measures pursuant to various statutory schemes.  Parravano v. Babbitt, 861 F. Supp. 914, 928 (N.D. Cal. 1994).

Finally, in Masoulf v. Babbitt, 85 F.3d 1295 (8th Cir. 1996), the Eighth Circuit held that an proposed intervenor under Rule 24(a)(2) must independently satisfy Article III standing requirements, summarized these requirements, and then held that an environmental organization that sought to intervene in a snowmobiler's action challenging limits on that activity on federal land satisfied the Article III standing requirement.  It explained: First, the would-be litigant must have suffered an "injury in fact"; that is, an "invasion of a legally protected interest which is (a) concrete and particularized … and (b) actual or imminent, not conjectural or hypothetical…."  . . . Second, the would-be litigant must establish a causal connection between the alleged injury and the conduct being challenged. . . .  Third, he must show that the injury is likely to be redressed by a favorable decision. 85 F.3d at 1301 (citations omitted).

In the case at bar, FSF members will face concrete economic injury, in terms of lost fishing opportunities and revenue, as well as the economic and conservation costs of delayed scallop rebuilding, if this litigation succeeds.  They have demonstrated Article III standing and the necessary cognizable interest under Fed. R. Civ. P. 24(a)(2).

iii. This Case's Disposition Without Movant's Participation Would, As a Practical Matter, Impair and Impede Movant's and Its Members Ability to Protect their Interests.

The third prong of the intervention as of right test is whether the applicant is "so situated that the disposition of the action may, as a practical matter, impair or impede the party's ability to protect" the interest supporting the application to intervene.

Courts in this Circuit have found on more than one occasion that industry groups could not effectively protect their interests unless they were permitted to intervene in actions filed by environmental groups challenging regulatory decisions by government agencies because the disposition of the action may impair or impede the industry groups ability to protect their interests.  See Huron Environmental Activist League  917 F. Supp. at 42.  Natural Resources Defense Council, Inc. v. EPA, 99 F.R.D. at 609.  In Huron Environmental Activist League, the court found that movant, an organization representing members of the cement industry, had demonstrated a sufficient interest to warrant intervention after concluding that:

Were the plaintiffs to prevail on the merits of this case and obtain the relief they seek, the defendant [EPA] would be enjoined from relying in any way on the product of its meetings with various industry representatives.  In addition to thwarting otherwise useful interaction between government and nongovernmental groups, this would have the result of rendering useless not only the efforts of the defendant, but the substantial good faith efforts of the cement industry to develop the enforceable agreement and the proposed CKD management practices that are the subject of the plaintiffs’ Complaint. 917 F. Supp. at 42.  Accordingly, “[b]ecause any injunctive relief would likely eviscerate their substantial work product, and because it would establish a rule of law unfavorable to them,” the court concluded that the industry group was entitled to intervene.  Id., at 43.

Similarly, in Natural Resources Defense Council, Inc., the court found that movants, organizations representing pesticide manufacturers, were entitled to intervene as of right since the movants “spent several years trying to demonstrate to EPA that the pesticides they manufacture are not so dangerous that their registration should be restricted or terminated,” and, if the plaintiffs prevailed, these efforts may have been nullified.  99 F.R.D. at 609.

Like the industry intervenors in Huron Environmental Activist League and Natural Resources Defense Council, Inc., Movant FSF’s  and its participants’ efforts to secure the development of regulations that will retain their economic viability consistent with scallop rebuilding requirements (Framework Adjustment 12), and that will provide the important ecological and economic goals of rotational scallop fishing in 2000 (Framework Adjustment 13), will be thwarted if the underlying action succeeds.

Finally, if this Court issues a preliminary injunction to prevent the limited Georges Bank Closed Area I and Nantucket Lightship Closed Area scallop fisheries, it is likely that the opportunity for these fisheries will expire before the Court concludes its review of the merits of this action.  The Nantucket Lightship Closed Area fishery  will last only from August 15 through September 30, 2000, and the Closed Area I fishery will last only from  October 1 through December 31, 2000.  See 65 Fed. Reg. at 37912 (reprinting 50 C.F.R. § 648.58(b)); Orman Dec. at  81.

Finally, it is not unknown for these Defendants to settle an action brought by the very same lead Plaintiff even though the settlement had dramatic negative impacts for the commercial fishery industry.  See Conservation Law Foundation, 966 F.2d at 43-44.

iv. Defendants Do Not and Perhaps Institutionally Cannot Adequately Represent the Interests of FSF’s Members

Defendants will not adequately represent the interests of FSF and its participants in this case. The burden of demonstrating inadequate representation is "minimal" and prospective intervenors need only show “that representation of their interests by existing parties may be inadequate.”  Natural Resources Defense Council, Inc. v. EPA, 99 F.R.D. 607, 610 (D.D.C. 1983) (emphasis added) (citing Trbovich v. United Mine Workers, 404 U.S. 528, 538 n.10 (1972)).  The D.C. Circuit specifically identified this standard and explained how an agency and those whom it regulates have different interests that require representation, even if the regulated community supported regulations.  NRDC v. Costle, 561 F.2d at 912.  See also Natural Resources Defense Council, Inc., 99 F.R.D. at 610 (concluding that the EPA, whose policies and procedures were being challenged, may not have the same interest as the intervening industry group in demonstrating that the EPA’s decisions were lawful); Dimond v. District of Columbia, 792 F.2d 179, 192-93 (D.C. Cir. 1986) (governmental entity charged by law with representing the public interests of its citizens might shirk its responsibility were it to advance the narrower interest of one element of the regulated community).  In fact, the Tenth Circuit gone so far as to observe that an agency seeking to protect both the public interest and the interest of a private intervenor undertakes a "task which is on its face impossible."  National Farm Lines v. Interstate Commerce Commission, 564 F.2d 381, 384 (10th Cir. 1977).   Given the minimal nature of the showing that must be made, at least one court has held that "[t]he burden of persuasion that representation is adequate appears to rest on the party opposing intervention."  Caterino v. Barry, 922 F.2d 37, 42 n.4 (1st Cir. 1990) (emphasis in original).

As explained above, the First Circuit in Conservation Law Foundation ably explained why the very Defendants named in this action could not adequately represent the interests of the commercial fishing community in another action by environmental organizations seeking increased restrictions on the fishing operations of the commercial fishermen that sought to intervene.  966 F.2d at 44-45.  See also Kleissler, 157 F.3d at 972 (and cases cited therein).

Rule 24(b)(2) grants the Court discretion to allow permissive intervention upon timely application “when an applicant’s claim or defense and the main action have a question of law or fact in common.”  In deciding whether to allow permissive intervention, a court should consider “whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.”  Id.

For the reasons outlined above, FSF’s intervention motion is timely and intervention will not unduly prejudice the adjudication of the rights of plaintiff or the federal defendant.  Furthermore, FSF’s arguments arise out of the same facts as the main action and raise the same issues as are framed in the main action.  Thus, should this Court find that FSF is not entitled to intervene in this action as a matter of right, it should exercise its discretion and allow permissive intervention.  See Natural Resources Defense Council, Inc. v. Tennessee Valley Authority, 340 F. Supp. 400, 408-409 (S.D.N.Y. 1971), rev’d on other grounds, 455 F.2d 255 (2d Cir. 1972) (granting permissive intervention to National Audobon Society where there were common questions of law and fact with the main action and Audubon demonstrated an interest in the underlying subject matter).

For each of the foregoing reasons, FSF respectfully requests that this Court issue an order granting its Motion to Intervene as a defendant. If the Court does not choose to pemit Movant to intervene, Movant respectfully requests that it be permitted to participate as aamicus curiae

Dated:  July ___, 2000   Respectfully submitted,

_______________________
David E. Frulla  (D.C. Bar No. 414170)       Brand & Frulla, P.C.
923 Fifteenth Street, N.W.
Washington, D.C.  20005
Telephone:  (202) 662-9700
Facsimile:   (202) 737-7565

Attorney for Movant, FSF