two factors of intervention that are directly into spirit one is practical impairment and the second is adequacy of representation first will provide a background as it helps to inform the discussion of legal analysis with respect to impairment and adequacy of representation today's case is about whether washington has officially adopted an adequate non point source pollution plan or program pursuant to the clean water act and my understanding is that the case is about whether the federal funding that was granted to washington on the conditional basis contingent upon washington developing more robust practice what that the case is really about whether the federal government should continue funding in the meantime that's part of the case your honor but if you will look at the reality of the complaint and the response brief the plaintiffs filed on appeal it's no secret that plaintiff is a more restrictive agricultural practices bottom if you're going to get that in this suit they might be what they're asking in this case is they're objecting to hey federal government you're not supposed to fund on this contingent basis in the meantime and that that's the question to be resolved and i'm wondering if i'm misunderstanding the founder prime fundamental premise of what was really before the district court and the regional play this program works on sort of a carrot stick approach so the funding is  know part bottom sort of the kid the stick the plaintiffs have used in order to attempt to to basically get more restrictive agricultural practices or are overall just more non point source regulation if  wind according to them in their response brief if they win then my clients will be subject to more stringent agricultural practices that's page eleven and twelve their response prefunding would be right the funding would be indefinitely cut off well that's what they've asked for others tell you i don't take up all your time for both of you it's going to be important for me to know what what was the underlying case about because i am struggling to see if it's going to involve a trade off right a conflict between the cattlemen and the state that's that's my issue so is it you would your honor like me to address the nature of the claims the reality of the complaint which i think is very well briefed and obvious from plaintiff's response and the nature of the complaint for example claim for which is the clean water act section three nineteen that particular claim asked this court and claims deficiency or that there are in efficient or defective implementation control or that they even exist at all you know i appreciate that my problem is it seems to me that is a monolithic question either washington qualified or didn't qualify and that washington i think this is the district court's view that hush up and let you answer but that they just thought that washington court rely on after finding protectable interest the district court basically said but because the state has the same ultimate objective that they in adequacy of representation is not met here for purposes of intervention and that's wrong your honor the state if we go back to the states motion to intervene their interest is to maintain the highest possible standards to ensure the purity of the waters of washington that is what the purported interest was and that is their ultimate objective if the ultimate objective in environmental cases was simply just uphold the federal agencies decision we would never have a defendant  because that's almost inevitably always what's at issue in a case is a federal agencies decision well i'm going to beg to differ with you but i but i don't want to take up all your time so i've asked my question and i appreciate your answer julie but i want to hear from both parties and here on are going back to the basically the district court found that there were protectable interest but if you analyze those interest here those interest informs the impairment and the adequacy of representation the interest watching the clock the interest for the state as intervene as outlined in their motion to intervene was to maintain the high security of all of the water that's their interest that's their ultimate objective my client's ultimate objective is to stay in business to maintain sustainable and economical inviolable farms and ranches to pass to legacies to come it is the private interest but it is threatened here because plaintiff has put their practices at issue and on trial in this case and we see that specifically in claim for when they're asking for specific measures a schedule and an exact date to start those are substantive allegations and if they prevail it will necessarily require the court to find those plans at issue here as in adequate or non existent so help me understand as a practical matter if north west environmental succeeds on its claims you currently the current status as i understand is there is a best management practice program in place and there is federal funding to support compliance with those practices is that correct the funding supports implementation of the practices as well as a number of other programs educational outreach cost sharing technical assistance exciter it's not compliance in a vacuum so so northwest understands that the e p a is approval or i guess is now has also approval of the program the best management practices response in the meantime the funding is going to continue on a contingent basis yes but the plaintiffs have asked for an indefinite halt of funding in the second amended complaint so currently the  something different than what they are now i think that ok so they even challenge that they exist or that my clients even use any effective nonpoint control pollution on the ground measures now that's page eleven twelve of their response their claim for relief is that all grant funds have to be withheld so if they prevail fully on their complaint and the gram funds would have to be withheld until there is no provable programs that would be plaintiff spearing that's plaintiff's ferry so  question is if they succeed on their complaint in full the gram funds would have to be stopped in till a program with best data practices meets some different level than whatever it is now  and on the ground expertise your clients but they have every incentive to defend your clients have can you tell me why he's wrong about that he's wrong because he assumed the ultimate objective was the same and that the ultimate objective was the same as the federal government's which was to have the agency decision upholding that word through the state shared an ultimate objective identical to the federal governments and they would likely then curious how they met that standard then my clients declarations the declaration to make clear that they have private and separate interest the state's own motion to intervene which was unchallenged states that they depend on this funny to maintain the highest possible standards for water purity that is very different than my client's interests private and economic interests at stake here also my client's interests are narrow the state references tribes records point just respectfully that's the district court point the state's interest is broader but i fully appreciate the part of your argument about what the underlying suit is really about and what pos what could happen if the plaintiffs prevail there are a lot of different hypothetical scenarios that you could spin out as to what would ensue if the pla their case but in large part the interests of the would be interveners is going to be affected contingent on how the state response to the outcome of the case not on the outcome of the case itself so is there anything in the record showing that washington would ensure that there wouldn't be this practical paramedic of the intervene a proposed intervenors interest so i think you have to look at the nature of this case which is a challenge to the funding not to the adequacy of whether of the programs or whether they can continue under state law the programs for state best management practices will not themselves be set aside the state could continue to implement them albeit with fewer f now there are declarations in the record post stating this appeal are not technically part of the record on appeal that my friend on the other side cited in in the reply brief and i will address those if the court would permit  of all outside the record on appeal and second if you actually look at the declarations that were submitted they say that the state of washington would either seek to recruit funds if for example it's ordered to pay back the past year fines or it would seek an additional legislative appropriation and who would it recruit the funds from presumably from the party said grant only agricultural interest so let's go back to this approvable plan issue and this is always hard to understand what's happening on the ground but reading the complaint there appeared to be the theory of northwest environmental seem to be that the plan was not approvable that the best management practices were not correct didn't meet statutory standards and therefore the e p a had had heard or had an arbitrary capricious in allowing it to be implemented and providing grant phones now from what you are saying is this is solely a matter of grand funds to assist the farmers and ranchers to implement the plans have not man at federal standards and therefore i assume they would have to be redone by the e p a isn't that correct well we're talking about two different plans one are the coastal plans of coast non point source plans that's what was conditionally approved that's the point they weren't just approved right they were conditional the federal government is recognizing that washington has more and that's what i'm trying to get if i misunderstand me if i really want to be correct no i the federal government said these aren't good updated and those updates were approved by e p a and can i don't believe they were those were condition and those are still at issue in the case they're being challenged as being inadequate they're being challenged as inadequate under the clean water act so if if plaintiffs prevail  those plans also would have to be modified to be more rigorous is that correct not necessarily i mean that the program was the original program was submitted back in the late one nine hundred eighty s and it was approved our position  the adequacy under the statute was the plan was required of the clean water act was required to be submitted by some date in nine hundred eighty eight or nine hundred eighty nine that's long past that's our position that that's a requirement the statute is satisfied but separate the coastal non point source programs they could simply decline to accept the coastal funding as alaska has done and then they would be subject to the act but they would be subject to the clean water act of course yes it is and i guess though i mean are even in washington yes again though our position is it's a program that was submitted long ago and although it's been updated in e p a has approved those updates that those do not trigger the requirement to but i understand that that's the merits argument i'm just seriously by the outcome and i do not need to be convinced that i'm trying to figure out how their interests differ why there's a conflict if there is a conflict and the response that i got two or three times is that the state has taken the position that it is in most pristine standard in her clients aren't i mean they have a different interest because as you said they want to earn a living you want to speak to this place so that that statement is based on the language of the state statute it's a revised code of washington it's a section we said in our briefs it's ninety point forty eight point zero one zero it talks about the state's goal of maintaining the highest possible standards to ensure the purity of all waters in the state consistent with a variety of factors including industrial development of the state and then the statute goes on and says and to that end require the use of all reasonable methods by industries and others so there's some capacity in that statute for the state to balance industrial interests with interests in environmental protection you're not the state i would expect if we hear from the state that they would not say we're not interested in the high quality  for all the people of the the state whereas these agricultural ranchers have a very specific interest as they said making a living right so is there any basis in the statute or in the declaration for washington t say now our priority is to make sure that we don't drive our ranchers and farmers out of business or make it unduly expensive i don't see any i mean there's another separate statute to talks about particular interest in family farm irrigation family farms but again the state is like the federal government going to have to balance those interests and i take my friends point that they they have a more direct interest in the economics of their own property and their businesses the point though ground and i don't need to be convinced that this would be an important outcome for them so why you haven't found it well i think it's not an essential element to the proceedings here they haven't shown that it's an essential element to demonstrate the statute and there's nothing in the statute that talks specifically about the economic impacts to the property owners being a factor i would back cases like forest conservation council and others where we said the party with a narrow parochial interests does have a separate interest from the government i think there it was the state of arizona had a different interest than the federal defense how do you distinguish it in this case because it seems to have to fall specifically with about language an arrow parochial interest so i mean these these cases i know is you know the law the law on intervention is very flu very case specific and i would point to here the presence of the state in the case as the intervenor which i don't believe was relied on for adequacy of representation in the force conservation council case and  also say that this is a unique case in that the main impacts they are alleging that they would suffer or would be a result of how the state response to an order withholding funds if the state is going to be able to obtain for example once this presumption about it will see arises and so we would say that the burden is upon them to show that there would be a differentiated interest and i have read their declarations i'm not trying to denigrate their interests in any way but you know this is one of those cases where you have on both sides of the granting equation government entities representing the grant funder or the federal government and the recipients of the grants the state and now the state does spend some of this money not just passing it along but on it technical staff and expertise and all of that so they have unique interests in that respect but otherwise you know they are in the position of wanting to see these funds used for the projects of the same type that my friend for th allergies and other types of interested industry organizations potentially forestry associations would also be similarly situated in that they received these types of grants and that there's no limiting principle that my friend has offered to say why they wouldn't also be interveners of right i mean subject to the district court's ability to manage the proceedings and maintain efficiency but you know by and large that's not that's issue isn't at issue here right because they haven't asked the past decade or so has not always you know oppose these types of intervention motions but there's been a renewed effort to take a more careful record based look at each case and to see whether the interests i'm also happy answer question about the claims if you haven't but in my view if plaintiff wins it's claims that the approvals of washington's nonpoint programs are invalid under federal law the first thing that relief you're not you're saying they can leave the inadequate program place indefinitely so long as they don't get funding is that correct i think it's not entirely correct i think if plaintiffs prevails on claim for which is a challenge to approval of washington's nonpoint program then judge who now or could declare that approval invalid there's case law around whether he should then go ahead and vacate or not so the plan here may not see some effort to get into compliance what can you tell me would happen as a result of the declaration in adequate if that happened if they're out of compliance compliance do we know that the funding stops we don't know that the funding stops because in my view under section three eighty one e p a is only allowed to give three nineteen money to states with an approved plan if the approved plan is declared invalid but not vacated and left in pick in place pending a revision deemed i think inadequate the funding is can it's conditionally improved my understanding it has to be improved their plans has to be improved and the funding is just conditional so i'm trying to figure out how do we know when do we know the that i don't i don't think we know there's for me and i'm over my time but i want to answer your question i don't think we know whether the plaintiff is question and again we're not done with the district court proceedings judge who now has said that with respect to claims two in three which we call this is our claims that plaintiff does not have standing to seek to have the federal government withhold money from the state of washington because that doesn't redress injuries to advocates or its members because it is you know potentially actually harms implementation of non point source programs and  pollution efforts now we disagree with that we're going to continue to litigate that issue at the district court but it but if judge could ever stand by that he may where very well find that plaintiff doesn't have standing to get  to withhold money from the state of washington so that would mean declaratory relief or vacate her or something else there's also an endangered species act or leave my last push standing is not is at issue in this case  before this court it is still at issue below so we would ask the court not to address that issue thank you you have some time sort of seeing how this conversation's unfolding i want to stress this is not only about funding it is about the adequacy of the plans which addresses b m p schedules programs and not hiding the ball about this it is not just about funding the second piece that i of the conversation i unfold in is what would happen if and what would happen if and mr toes in his brief identifies well they may be impaired if the state has to claw back and get money but the law going to be impaired maybe because the district court may not get there or the claims may be dismissed but the standard for intervention is not retrospectively in fact f r c p twenty four a requires the timely motion without undue cause and to lay so that means the applicant intervener can't wait for the case to be resolved and then decide if we may be impaired we don't wait for impairment actually happen brad twenty four and he says timely intervention so it may be impaired which is what the supreme court precedent says trope of it then that's sufficient it is not can identify one or two or multiple scenarios where the applicant may not be impaired it doesn't trump the admitted may be impaired that's already obvious from the briefs and obvious from plaintiff sprit may be impaired is the standard under wilderness society in an on bank decision in two thousand and eleven this circuit abandoned the none but for defendant federal defendant role it abandoned and corrected the restrictions of limiting intervention to private parties until the remedy phase and if we buy plaint if we buy mr toads theory today then the defendant intervener could never intervene until the cases  is agreed to follow the schedule and i don't think that efficiency and traditional efficiencies and an issue here given that but i don't think there's a clear answer on that as to where it ends of parties keep keep coming along but i think on a states adequacy of representation was not briefed to the district court it came for the first time on appeal because the federal defendants did not make that argument at the district court level in part maybe because the state and my clients moved on the same day to intervene but it raises the question query whether had the farmers and ranchers been granted intervention first whether it would be clear that we have the same interests as the state competing priorities if i may and on just one quote from wilderness society we urge the court not to turn back the clock on intervention because the reality is that in cases like these they frequently private state and federal interest against each other rigid rules and such cases contravene a major premise of intervention the protection of third parties affected by the pending litigation thank you for your consideration