FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WEST COAST SEAFOOD PROCESSORS 

ASSOCIATION,

Applicant-in-interventionAppellant,

v.

NATURAL RESOURCES DEFENSE

COUNCIL, INC.; PACIFIC MARINE

CONSERVATION COUNCIL, INC., No. 09-16245

Plaintiffs-Appellees,  DC No.

MAKAH INDIAN TRIBE, 3:01 cv-0421 JL

Intervenor-Appellee,

GARY LOCKE, Secretary of

Commerce; NATIONAL MARINE

FISHERIES SERVICE; NATIONAL

OCEANIC AND ATMOSPHERIC

ADMINISTRATION,

Defendants-Appellees. 

9019
NATURAL RESOURCES DEFENSE 

COUNCIL, INC.; PACIFIC MARINE

CONSERVATION COUNCIL, INC.,

Plaintiffs-Appellees,

MAKAH INDIAN TRIBE, No. 09-16796

Intervenor-Appellee,

DC No.

v.  3:01 cv-0421 JL

GARY LOCKE, Secretary of OPINION

Commerce; NATIONAL MARINE

FISHERIES SERVICE; NATIONAL

OCEANIC AND ATMOSPHERIC

ADMINISTRATION,

Defendants-Appellees. 

Appeals from the United States District Court

for the Northern District of California

James Larson, Magistrate Judge, Presiding

Argued and Submitted

June 14, 2010—San Francisco, California

Filed July 6, 2011

Before: Diarmuid F. O’Scannlain, A. Wallace Tashima, and

Carlos T. Bea, Circuit Judges.

Opinion by Judge Tashima;

Dissent by Judge Bea

9020 WEST COAST SEAFOOD PROCESSORS v. NRDC
COUNSEL

Gwen L. Fanger, Davis Wright Tremaine LLP, San Francisco,

California, for the applicant-in-intervention-appellant.

Selena K. Kyle, Natural Resources Defense Council, San

Francisco, California, for the plaintiffs-appellees.

9022 WEST COAST SEAFOOD PROCESSORS v. NRDC
OPINION

TASHIMA, Circuit Judge:

West Coast Seafood Processors Association (“WCSPA”)

appeals from the district court’s denial of its motion to intervene as a defendant in this case, in which the Natural

Resources Defense Council, Inc., and Pacific Marine Conservation Council, Inc. (together, “NRDC”) challenged the

National Marine Fisheries Service’s (“NMFS”) program to

preserve groundfish species off the coast of California, Oregon, and Washington. Because the litigation between NRDC

and NMFS has ended, we dismiss WCSPA’s appeal as moot.

I.

Exercising its authority under the Magnuson-Stevens Act,

16 U.S.C. § 1801 et. seq., NMFS uses two primary and interrelated tools to regulate Pacific groundfish fisheries: (1) the

Pacific Coast Groundfish Fishery Management Plan

(“Groundfish Plan”), established in 1982 and amended periodically since, which sets forth procedures for assessing the

health of groundfish populations and for formulating preservation measures; and (2) annual or biennial “specifications

and management measures” (“Specifications”), which set

quotas on the catch for each overfished species and impose

restrictions on the methods used to catch such species.

II.

This case was already eight years old when WCSPA sought

to intervene, both as of right and permissively, but in one

sense the case was brand new. NRDC originally filed the case

as a challenge to Amendment 12 of the Groundfish Plan,

which governs the development of rebuilding plans for overfished species. WCSPA began to participate as an amicus in

late 2002, but it did not move to intervene. Between 2004 and

2007, NRDC amended its complaint four times, each time to

WEST COAST SEAFOOD PROCESSORS v. NRDC 9023
add a challenge to a new amendment to the Groundfish Plan.

WCSPA moved to intervene in anticipation of the Fourth

Amended Complaint, but the presiding Magistrate Judge

denied the motion as untimely, and WCSPA did not appeal.

In 2009, NRDC changed the nature of the case by filing a

Fifth Amended Complaint that added a challenge to NMFS’

2009-10 Specifications. Whereas previously the case had concerned only the Groundfish Plan, the Fifth Amended Complaint brought in an attack on NMFS’ other major regulatory

mechanism, the Specifications that set fishing quotas.1 In the

past, NRDC had challenged the Specifications in separate

actions. Between 2002 and 2005, it filed separate actions

challenging the annual Specifications for 2002, 2003, and

2004, and the biennial Specifications for 2005-06. WCSPA

successfully intervened in all four actions, thereby demonstrating a strong interest in fully participating in litigation

concerning the Specifications. Predictably, WCSPA also

moved to intervene in this case two days after NRDC filed its

challenge to the 2009-10 Specifications in its Fifth Amended

Complaint. But the Magistrate Judge2 denied the motion as

untimely because of the age of the litigation. On appeal,

WCSPA argues that the Magistrate Judge erred by basing his

decision on the age of the litigation (eight years) rather than

the time that had elapsed between the filing of the Fifth

Amended Complaint and the motion to intervene (two days).

While this appeal was pending, however, the underlying litigation — the dispute between NRDC and NMFS — fully ran

its course. On the parties’ cross-motions for summary judg1At its inception, this case was consolidated with a separate case that

challenged the 2001 Specifications, but that separate case was dismissed

after we resolved the challenge to the 2001 Specifications on appeal in

2003. See Natural Res. Def. Council, Inc. v. Evans, 316 F.3d 904 (9th Cir.

2003). 

2All parties consented under 28 U.S.C. § 636(c)(1) to a Magistrate

Judge entering judgment in the case. 

9024 WEST COAST SEAFOOD PROCESSORS v. NRDC
ment, the Magistrate Judge held that the Specifications for

three species violated the Magnuson-Stevens Act, but that the

Specifications for four other species did not. In an Order on

Remedy, filed April 29, 2010 — six weeks before we heard

oral argument on this appeal — the Magistrate Judge directed

NMFS to establish new Specifications within one year and

retained jurisdiction to ensure the agency’s compliance.

Although NMFS filed a notice of appeal from the Order on

Remedy, it voluntarily dismissed that appeal before briefing

by either party. The Magistrate Judge entered final judgment

on May 5, 2011.

III.

[1] An appeal is moot if there exists no “ ‘present controversy as to which effective relief can be granted.’ ” Outdoor

Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 900

(9th Cir. 2007) (quoting Vill. of Gambell v. Babbitt, 999 F.2d

403, 406 (9th Cir. 1993)). WCSPA appeals from the denial of

its motion to intervene in a case that the district court has

since decided, through the Order on Remedy and the subsequent final judgment, from which neither party has appealed.

Because the underlying litigation is over, we cannot grant

WCSPA any “effective relief” by allowing it to intervene

now. The appeal is therefore moot. See United States v. Ford,

650 F.2d 1141, 1143 (9th Cir. 1981) (dismissing as moot an

appeal of a denial of a motion to intervene where the underlying litigation was voluntarily dismissed) (“Since there is no

longer any action in which appellants can intervene, judicial

consideration of the [intervention] question would be fruitless.”); cf. Canatella v. California, 404 F.3d 1106, 1109 n.1

(9th Cir. 2005) (holding that entry of judgment in the underlying litigation does not moot an appeal from a denial of a

motion to intervene, if one of the parties keeps the underlying

litigation live by pursuing an appeal). 

[2] The “capable of repetition, yet evading review” exception to mootness does not apply. That exception applies only

WEST COAST SEAFOOD PROCESSORS v. NRDC 9025
in “extraordinary cases.” Doe v. Madison Sch. Dist. No. 321,

177 F.3d 789, 798 (9th Cir. 1999) (en banc). Although it

might apply to an appeal of the underlying litigation about the

biennial Specifications, it does not apply to WCSPA’s appeal

of the denial of its motion to intervene.

[3] First, the “capable of repetition” prong of the exception

requires a “reasonable expectation” that the same party will

confront the same controversy again. Feldman v. Bomar, 518

F.3d 637, 644 (9th Cir. 2008). On this appeal, the controversy

is whether WCSPA’s motion to intervene was timely. Unique

circumstances produced this controversy. For eight years,

NRDC maintained an action challenging amendments to the

Groundfish Plan, a subject that did not prompt WCSPA to

intervene, at least not for the first six years of the case. NRDC

then amended its complaint to add an attack on the 2009-10

Specifications, a subject that WCSPA did consider

intervention-worthy. The district court denied the motion to

intervene as untimely because of the age of the litigation.

WCSPA disagrees and argues that the motion came in timely

response to the Fifth Amended Complaint. It is not reasonable

to expect that this dispute about timeliness will arise again.

The hybrid Groundfish Plan/Specifications litigation is over.

Although NRDC will likely challenge future Specifications

and WCSPA will likely file future motions to intervene, the

timeliness issue, which is the subject of this appeal, will not

likely reappear (as it did not appear in any of the other cases

in which the NRDC challenged earlier Specifications and in

which WCSPA successfully intervened), unless the same

unlikely, hybrid scenario develops again over the next decade.

Such a speculative possibility does not constitute a “reasonable expectation.” See Sze v. INS, 153 F.3d 1005, 1009 (9th

Cir. 1998); Luckie v. EPA, 752 F.2d 454, 458 (9th Cir. 1985).

[4] Second, the intervention issue does not “evade review.”

A controversy evades review only if it is “ ‘inherently limited

in duration such that it is likely always to become moot before

federal court litigation is completed.’ ” Ctr. for Biological

9026 WEST COAST SEAFOOD PROCESSORS v. NRDC
Diversity v. Lohn, 511 F.3d 960, 965 (9th Cir. 2007) (quoting

Native Vill. of Noatak v. Blatchford, 38 F.3d 1505, 1509 (9th

Cir. 1994)). With respect to this inquiry, one must not conflate the issue in the underlying litigation — whether the

2009-10 Specifications are valid — with the controversy in

this appeal over WCSPA’s motion to intervene. The controversy over the 2009-10 Specifications does evade review,

because the Specifications are biennial. See Alaska Ctr. for

the Env’t v. U.S. Forest Serv., 189 F.3d 851, 855 (9th Cir.

1999) (two-year permit evades review); see also Evans, 316

F.3d at 911 (one-year NMFS specifications “evade review”).

But the mootness vel non of the controversy over WCSPA’s

right to intervene depends on the duration of the underlying

litigation, not on the duration of the Specifications. See Canatella, 404 F.3d at 1109 n.1. Therefore, the intervention controversy does not evade review because, by virtue of the very

fact that the underlying dispute satisfies the mootness exception and could continue well past the two-year Specifications

period, the intervention dispute is not “inherently limited in

duration” nor “likely always to become moot.” Lohn, 511

F.3d at 965. Had NMFS not voluntarily dismissed its appeal,

the underlying case would have remained alive, and we could

have granted WCSPA effective relief by allowing it to intervene. See Canatella, 404 F.3d at 1109 n.1. The intervention

controversy avoids review here only because NMFS acquiesced in the court-ordered remedy by dismissing its appeal,

not because the controversy is “inherently limited in duration.” Therefore, the exception does not apply. See Lohn, 511

F.3d at 965.3

3The dissent contends that WCSPA “has at most two years to challenge

the denial of its motion to intervene before its challenge becomes moot.”

Dissent at 9031. This statement conflates the underlying litigation with

WCSPA’s appeal. Because the Specifications are biennial, under mootness

principles NRDC would have but two years to challenge them. That is not

enough time; therefore, the exception applies. See Evans, 316 F.3d at 911.

And because the exception applies, the underlying litigation could endure

longer than two years — indeed, had NMFS not voluntarily dismissed its

WEST COAST SEAFOOD PROCESSORS v. NRDC 9027
IV.

In sum, these appeals are moot and no exception to mootness can revive them. Accordingly, these appeals are 

DISMISSED.

BEA, Circuit Judge, dissenting: 

The majority concludes that the case is moot and does not

reach its merits. I respectfully dissent since I conclude the

case survives mootness because it falls in the “capable of repetition, yet evading review” exception to mootness. I would

thus reach the merits of the appeal and reverse. 

A seafood processors’ trade association moved to intervene

in a pending action, as of right and also permissively, two

days after the magistrate judge had granted the plaintiff, an

environmental organization, leave to file an amended complaint that challenged agency-set fishing quotas. For the past

several years, the environmental organization had challenged

such fishing quotas in separate federal court actions and the

trade association had intervened in almost all of those actions.

Here, however, the magistrate judge denied the trade association’s motion to intervene on the sole ground the motion was

untimely. 

The proposed intervenor in this case is West Coast Seafood

Processors Association (“WCSPA”), a nonprofit trade associappeal, the litigation would still be ongoing now, despite the expiration of

the Specifications. Because a remedy existed on WCSPA’s motion to

intervene for as long as the underlying litigation endured, and because the

duration of the underlying litigation had no inherent limit (as its ten-year

life span attests), the intervention controversy does not “evade review”

under our case law. See Lohn, 511 F.3d at 965. 

9028 WEST COAST SEAFOOD PROCESSORS v. NRDC
ation whose member companies, located in California, Oregon, and Washington, process fish taken from fisheries into

consumable fish products. WCSPA appeals the magistrate

judge’s denial of its motion to intervene in this case brought

by the Natural Resources Defense Council, Inc., and Pacific

Marine Conservation Council, Inc. (together the “NRDC”),

self-styled environmental organizations, against the Secretary

of Commerce, the National Oceanic and Atmospheric Administration, and the National Marine Fisheries Service

(“NMFS”).

In its Fifth Amended Complaint, NRDC alleges that NMFS

violated the Magnuson-Stevens Fishery Conservation and

Management Act (“Magnuson Act”), 16 U.S.C. § 1801 et

seq., which directs NMFS to end overfishing and to increase

the populations of overfished species off the coasts of the

United States. NMFS adopts fishery management plans to

accomplish this statutory mandate. These plans set target

dates by which to increase overfished populations to certain

levels, as well as procedures to impose fishing limits to

achieve those targets. Pursuant to those procedures, NMFS

separately announces fishing limits that set quotas, in metric

tons, on the amount of fish that may be caught each year.

In years past, NRDC has sued NMFS on the Pacific Coast

Groundfish Fishery Management Plan (“Groundfish Plan”)

amendments, contending that the amendments violated the

Magnuson Act. Between 2004 and 2007, NRDC amended its

original complaint four times, each time to incorporate a challenge to a newly adopted Groundfish Plan amendment.

WCSPA did not intervene in the suits as a party because it

was satisfied with NMFS’s representation as to issues raised

relating to the Groundfish Plan. 

However, in separate federal actions, NRDC also sued

NMFS to challenge the annual fishing quota specifications for

2002, 2003, and 2004, as well as the biennial specifications

for 2005-06, which dealt with quotas (metric tons of fish).

WEST COAST SEAFOOD PROCESSORS v. NRDC 9029
WCSPA timely intervened in each case for each year (save

one). Here, however, NRDC decided simply to amend its

Groundfish Plan lawsuit by its Fifth Amended Complaint

instead of following its longtime practice of bringing a separate and new lawsuit to challenge the 2009-10 specifications.

Two days after the magistrate judge granted NRDC leave to

so amend its complaint, WCSPA moved to intervene, as it had

done in each of NRDC’s separate, prior federal actions challenging fishing quotas since 2002. The magistrate judge here

denied WCSPA’s motion as untimely, and WCSPA appealed.

Given that NRDC fundamentally altered WCSPA’s interest

in this case when NRDC amended its complaint to challenge

the 2009-10 fishing quotas, as opposed to another amendment

to NMFS’s fishery management plan, and given that WCSPA

promptly moved to intervene after the magistrate judge

granted NRDC leave to file the amended complaint, I find the

magistrate judge below abused his discretion by such denial;

hence, I would reverse.

I.

I disagree with the majority that the panel cannot reach the

merits of the appeal because it is moot. Mootness is determined by whether a present controversy exists as to which a

court can grant any effective relief. Siskiyou Reg’l Educ. Project v. U.S. Forest Serv., 565 F.3d 545, 559 (9th Cir. 2009). I

agree with the majority that because the subject of the controversy that once existed between the NRDC and NMFS—the

2009-10 specifications—has expired and is on the verge of

being replaced by a new set of specifications, there is no longer any effective relief this court can grant to WCSPA. 

Nonetheless, I conclude that this case falls within the “capable of repetition, yet evading review” exception to mootness. This exception applies if two requirements are met: “(1)

the challenged action was in its duration too short to be fully

litigated prior to its cessation or expiration, and (2) there [is]

9030 WEST COAST SEAFOOD PROCESSORS v. NRDC
a reasonable expectation that the same complaining party

[will] be subjected to the same action again.” Weinstein v.

Bradford, 423 U.S. 147, 149 (1975) (per curiam). The present

case meets both of these requirements. 

First, the challenged action here is too short in its duration

to be fully litigated before a Court of Appeals and the

Supreme Court prior to its expiration. The underlying lawsuit

between NRDC and NMFS deals with fishing quota specifications which expire every two years. Once the fishing quota

specifications expire, the controversy over WCSPA’s right to

intervene in the suit challenging the fishing quota specifications becomes moot. WCSPA thus has at most two years to

challenge the denial of its motion to intervene before its challenge becomes moot. Both the Supreme Court and this court

have held that two years is too short in duration for a case to

be fully litigated. S. Pac. Terminal Co. v. ICC, 219 U.S. 498,

514-16 (1911) (order that expires by its terms after two years

evades review); Alaska Ctr. for Env’t v. U.S. Forest Serv., 189

F.3d 851, 855 (9th Cir. 1999) (a permit that expired in two

years is too short for judicial review); see also Greenpeace

Action v. Franklin, 14 F.3d 1324, 1329-30 (9th Cir. 1992)

(fishing quota specifications that expire in one year evade

review). 

Second, the challenged action is capable of repetition. The

Supreme Court has explained it is enough that the litigant

“faces some likelihood of becoming involved in the same

controversy in the future.” U.S. Parole Comm’n v. Geraghty,

445 U.S. 388, 398 (1980). The central consideration is

“whether the controversy [is] capable of repetition and not . . .

whether the claimant ha[s] demonstrated that a recurrence of

the dispute [is] more probable than not.” Honig v. Doe, 484

U.S. 305, 318 n.6 (1988) (emphasis in original). Further, “[i]n

estimating the likelihood of an event’s occurring in the future,

a natural starting point is how often it has occurred in the

past.” Clarke v. United States, 915 F.2d 699, 704 (D.C. Cir.

1990) (en banc). For almost a decade before its Fifth

WEST COAST SEAFOOD PROCESSORS v. NRDC 9031
Amended Complaint, NRDC had, without exception, challenged fishing quotas in separate actions, and WCSPA had,

with only one early exception, intervened in each of those

actions. In the present case, WCSPA attempted to intervene

in the fishing quota suit only two days after NRDC successfully amended its separate Groundfish Plan lawsuit to challenge the 2009-10 fishing quota specifications. Yet, the

magistrate judge inexplicably concluded that WCSPA’s

motion to intervene was untimely despite WCSPA’s promptness in filing its motion. Given that NRDC successfully prevented WCSPA from intervening in its fishing quota suit, it

is now likely that NRDC will pursue its fishing quota challenges by amendment to future Groundfish Plan suits against

NMFS rather than by separate action. Hence, WCSPA faces

some likelihood of becoming involved in the same controversy in the future. 

Because both prongs of the repetition and evasion exception are satisfied, I conclude this case falls within the “capable

of repetition, yet evading review” exception to mootness.

Therefore, I would reach the merits of WCSPA’s appeal.

II.

On the merits, I would hold that the magistrate judge

abused his discretion when he denied WCSPA’s motion to

intervene as untimely. Under United States v. Hinkson, 585

F.3d 1247, 1251, 1262 (9th Cir. 2009) (en banc), a trial court

abuses its discretion if it fails to apply the correct legal standard to decide an issue. If, however, the trial court applies the

correct legal standard, there is no abuse of discretion unless

the trial court’s findings of fact, and its application of those

findings of fact to the correct legal standard, are illogical,

implausible, or without support in inferences that may be

drawn from facts in the record. Id.

Here, the magistrate judge correctly identified the three factors that courts weigh to determine whether a motion to inter9032 WEST COAST SEAFOOD PROCESSORS v. NRDC
vene is timely: “(1) the stage of the proceeding at which an

applicant seeks to intervene; (2) the prejudice to other parties;

and (3) the reason for and length of the delay.” League of

United Latin Am. Citizens v. Wilson (“LULAC”), 131 F.3d

1297, 1302 (9th Cir. 1997). But the magistrate judge abused

his discretion because his findings as to those three factors are

without support in inferences that may be drawn from facts in

the record, as set out below.

A. Stage of the proceedings

To determine whether the “stage of the proceeding” factor

supports a finding of untimeliness, the court should consider

not only “what had not yet occurred” prior to the motion to

intervene, but also “what had already occurred by that time.”

See LULAC, 131 F.3d at 1303 (emphases in original). This

factor weighs heavily against allowing intervention as of right

where the trial court has substantially engaged the issues in a

case. Smith v. Marsh, 194 F.3d 1045, 1051 (9th Cir. 1999).

But the mere lapse of time, without more, is not necessarily

a bar to intervention; “changed circumstance” may “suggest[ ]

that the litigation is entering a new stage” and, therefore,

“militate in favor of granting the application.” United States

v. Oregon, 745 F.2d 550, 552 (9th Cir. 1984).

The magistrate judge found that this factor weighed against

timeliness in this case, but the reasons he cited for this finding

are without support in inferences that may be drawn from

facts in the record. The magistrate judge first noted that two

related cases that challenged the 2001 and 2002 specifications, respectively, had been resolved on appeal. But this says

little, if anything, about the stage of the proceedings in this

case which dealt with fish quotas for 2009-10, not 2001 and

2002. This is true even as to the 2001 specifications case,

which was consolidated with this case and then dismissed.

The 2002 specifications case has an even more tenuous connection to this case because that case was never consolidated

with this one. Moreover, WCSPA timely intervened in the

WEST COAST SEAFOOD PROCESSORS v. NRDC 9033
2002 specifications case, but later moved to participate in this

case only as an amicus. The only reasonable inference is that

WCSPA perceived its interest to be stronger in challenges to

the quotas in the specifications than in challenges to the procedural reforms of the Groundfish Plan amendments.

The magistrate judge also noted that, back in August 2001,

he had granted summary judgment in this case to NRDC, in

part because Amendment 12 violated the Magnuson Act’s

requirement that rebuilding plans take the form of a fishery

management plan, plan amendment, or proposed regulation.

NRDC v. Evans, 168 F. Supp. 2d 1149, 1158 (N.D. Cal.

2001). But Amendment 12 is no longer at issue in this case

because, by its own admission, “NRDC is no longer pursuing

. . . claims [as to] Amendments 12 and 16-1 through 16-3.”

Only Amendment 16-4, which supersedes the prior amendments, is still at issue in this case. Summary judgment as to

Amendment 12 therefore does not support the magistrate

judge’s finding that this case is at a late stage in the proceedings. Cf. United States v. Alisal Water Corp., 370 F.3d 915,

921 (9th Cir. 2004) (motion that was pending as to the “bulk”

of ongoing claims supported a finding that the motion to intervene came at a late stage in the litigation).

What the magistrate judge did not consider is that the filing

of the Fifth Amended Complaint started the clock running as

to the substance of that Amendment; the stage of the proceeding was now the initial stage of the proceeding with respect

of NRDC’s challenge to the 2009-10 specifications. The Fifth

Amended Complaint challenged specifications for the first

time in this case as to the 2009-10 specifications and quotas,

rather than in a separate action as NRDC had done before

without exception. Indeed, because NRDC did not file a separate action to challenge the 2009-10 specifications, the Fifth

Amended Complaint challenged those specifications for the

first time ever, in this case or any other. The magistrate judge

therefore had not engaged—much less substantially engaged

—the 2009-10 specifications in any prior proceeding in this

9034 WEST COAST SEAFOOD PROCESSORS v. NRDC
case. At the time WCSPA moved to intervene, this case was

not “at issue;” NMFS had not even filed a responsive pleading

to the Fifth Amended Complaint. See LULAC, 131 F.3d at

1303 (holding the stage of the proceedings supported a finding of untimeliness of the proposed intervention where the

defendant had filed an answer). Thus, this case entered a new

stage with the filing of the Fifth Amended Complaint.

Here, I find instructive our opinion in Oregon, where the

State of Idaho moved to intervene as of right in litigation over

the extent to which two other states could, consistent with the

treaty rights of several Indian tribes, regulate fishing in a river

that runs through all three states. 745 F.2d at 551. The district

court, which five years earlier had approved a plan between

the parties for managing fisheries in the river, denied Idaho’s

motion as untimely. Id. at 552. It did so even though the

motion was filed soon after two Indian tribes had withdrawn

from the fisheries management plan and the district court had

ordered the parties to renegotiate the plan. Id. at 552. We

reversed, largely because “the possibility of new and

expanded negotiations” between the parties regarding a modified fisheries management plan constituted a “changed circumstance” and suggested the litigation was entering a new

stage. Id. Far from agreeing with the district court that the

stage of litigation disfavored intervention, we held that the

changed circumstance essentially had reset the clock on the

time for filing a motion to intervene, such that “the stage of

the proceeding . . . militate[d] in favor of granting” Idaho’s

motion to intervene. See id.

In this case, I would likewise hold that the filing of the

Fifth Amended Complaint constituted a changed circumstance

that reset the timeliness clock. Even if, prior to WCSPA’s

motion to intervene in this case, “a lot of water had already

passed underneath [the] litigation bridge” as to Plan amendments, LULAC, 131 F.3d at 1303, no water had passed underneath that bridge as to the 2009-10 specifications. The 2001

specifications case, which had been consolidated with this

WEST COAST SEAFOOD PROCESSORS v. NRDC 9035
case, was dismissed following our opinion in NRDC, 316 F.3d

at 913; and none of the actions that challenged the 2002,

2003, 2004, and 2005-06 specifications/quotas were ever consolidated with this case. Significantly, WCSPA intervened as

a full-fledged party in each of those actions. Thus, the magistrate judge’s finding that WCSPA’s motion to intervene came

too late in the proceedings is without support in inferences

that may be drawn from facts in the record.

B. Prejudice to the parties

To determine whether intervention prejudices the other parties to a case, the court compares the harm from allowing

intervention at a later stage of the proceedings with what

would have occurred no matter when the applicant was

allowed to intervene. Day v. Apoliana, 505 F.3d 963, 965 (9th

Cir. 2007) (“[T]hat the [applicant] is filing its Motion now,

rather than earlier in the proceedings, does not cause prejudice

. . . since the practical result of its intervention . . . would have

occurred whenever the state joined the proceedings.”). That

is, prejudice in this context is the harm that arises from late

intervention as opposed to early intervention. See, e.g., Cal.

Dep’t of Toxic Substances Control v. Commercial Realty

Projects, Inc., 309 F.3d 1113, 1119 (9th Cir. 2002) (agreeing

with the district court’s finding of prejudice where the parties

had already reached a settlement agreement, because late

intervention “would complicate the issues and upset the delicate balance achieved by” the parties’ agreement). Without

more, additional delay does not cause prejudice; “otherwise

every intervention motion would be denied out of hand

because it carried with it, almost [by] definition, the prospect

of prolonging the litigation.” LULAC, 131 F.3d at 1304.

Here, the magistrate judge found that WCSPA’s intervention would cause prejudice to the parties in this case for two

reasons. First, the magistrate judge stated that NRDC, as “a

nonprofit organization fighting environmental battles on many

fronts,” would have to allocate additional resources to this

9036 WEST COAST SEAFOOD PROCESSORS v. NRDC
case if WCSPA were allowed to intervene. Puzzlingly, the

magistrate judge did not explain what additional resources

NRDC would need to expend that would not have been

expended had WCSPA intervened earlier in this case. Second,

the magistrate judge stated that WCSPA may attempt to conduct discovery, file motions, and challenge pervious rulings,

and thus possibly could unravel all the progress of over seven

years of litigation. 

First, I am unaware that prejudice determinations should be

made differently as to “nonprofit organizations” than as to

“for profit organizations.”

1

 This court does not accord privileged status to nonprofit organizations based on some notion

of their greater civic virtue when compared to for profit—and

thereby taxpaying—organizations. Neither is prejudice to be

judged by whether a party is “fighting environmental battles

on many fronts” or fishing fish out of many fisheries. The lapidary lettering on the front of the Supreme Court reads:

“Equal Justice Under Law,” without an asterisked reference

that self-styled environmental organizations are more “equal”

than other parties because they are “fighting environmental

battles”—often of their own choosing. 

Second, nor is there any authority for the proposition that

the reallocation of resources, without more, may constitute

prejudice. If this court were to permit a finding of prejudice

merely because a party would be forced to expend more

resources to litigate a case, prejudice would exist in every

case. See id. Thus, it was illogical for the magistrate judge to

base his finding as to prejudice on these two reasons.

The notion that WCSPA’s motion to intervene could

unravel all the progress of the last seven years of litigation is

also unpersuasive. Although the general rule is that “intervenors are permitted to litigate fully once admitted to a suit,”

1Nor why this factor should be considered where the opponent WCSPA

is itself also a nonprofit association. 

WEST COAST SEAFOOD PROCESSORS v. NRDC 9037
LULAC, 131 F.3d at 1304, WCSPA denies that additional discovery is necessary and that it could challenge any prior rulings. But “neither [the magistrate judge’s] speculation nor

[WCSPA’s] reassurance can be dispositive of the timeliness

issue” with respect to prejudice. See id.

On the issue of prejudice, I find our decision in LULAC

instructive. In LULAC, public interest groups and individual

citizens sued in the Central District of California for declaratory and injunctive relief to bar California state officials from

enforcing provisions of Proposition 187, which required, inter

alia, that foreign citizens present in California without proper

immigration status be denied social services, health care, and

education benefits. Id. at 1300-01. After the district court

granted partial summary judgment to the plaintiffs, a foundation that helped draft and sponsor Proposition 187 moved to

intervene. Id. at 1301. The district court summarily denied the

motion, id., and this circuit affirmed on the ground the motion

was untimely, id. at 1308. As to prejudice, we held:

[I]n a case like this one, in which the proposed intervenor waited twenty-seven months before seeking to

interject itself into the case, only to move the court

for full-party participation at a time when the litigation was, by all accounts, beginning to wind itself

down, we believe that the additional delay caused by

the intervenor’s presence is indeed relevant to the

timeliness calculus, and counsels against granting

[the proposed intervenor’s] motion.

Id. at 1304. In this case, by contrast, WCSPA did not wait to

intervene to test the propriety of the challenged 2009-10 specifications; it sought to intervene two days after the magistrate

judge granted NRDC leave to file the Fifth Amended Complaint, which challenged those specifications for the first time

ever, and obviously, the first time in this case. This was significant because, prior to the filing of the Fifth Amended

Complaint, NRDC had consistently challenged earlier specifi9038 WEST COAST SEAFOOD PROCESSORS v. NRDC
cations in separate actions and, beginning in 2002, WCSPA

had consistently intervened in those separate actions.

Moreover, there was some discussion at oral argument as

to whether WCSPA would withhold consent to the magistrate

judge’s jurisdiction and therefore force a transfer to another

judge who would need to familiarize himself with this case.

This possibility cannot support a finding of prejudice here.

Not only is the point speculative, but it has “little to do with

timeliness.” Oregon, 745 F.2d at 553. Nothing suggests this

possibility is “materially different now than [it] would have

been had [WCSPA] sought to intervene a decade or [so] ago.”

See id. I therefore find no inferences which can be drawn

from the record for holding that WCSPA’s intervention would

prejudice the existing parties due to the passage of time.

C. Reason for and length of delay

The final factor that bears on the timeliness of a motion to

intervene is the “the length of and the reason for its delay.”

LULAC, 131 F.3d at 1304. To assess the timeliness of a

motion to intervene, the crucial date is not the date the applicant learned of the case, but rather “the date that the applicant

should have been aware its interests would no longer be protected adequately by the parties.” Id. (internal quotation marks

and brackets omitted). The applicant’s failure adequately to

explain the reason for its delay in moving to intervene may

weigh even more heavily than the delay itself in finding the

motion untimely. See id.

Here, the magistrate judge found that WCSPA waited over

seven years from the time NRDC filed the original complaint

in 2001, and over four years from the time we highlighted—

in NRDC, 421 F.3d at 878—the economic impact of rebuilding plans on fishing communities, before WCSPA moved to

intervene in response to the Fifth Amended Complaint. The

magistrate judge also found that WCSPA gave no reason for

its delay, but merely denied that there had been any delay. But

WEST COAST SEAFOOD PROCESSORS v. NRDC 9039
WCSPA was correct to insist that it did not delay; WCSPA

moved to intervene only two days after the magistrate judge

granted NRDC leave to file the Fifth Amended Complaint.

As noted above, in the Fifth Amended Complaint NRDC

raises new issues not mentioned in the previously operative

complaint—it challenged the 2009-10 specifications, as

opposed to mere Groundfish Plan amendments. In so doing,

NRDC fundamentally altered WCSPA’s interest in this case

because by challenging the 2009-10 specification, NRDC

challenged specific quotas on the amount of each overfished

groundfish species that may be fished—and therefore

processed—in 2009 and 2010. This bears far more heavily

and directly on the ability of WCSPA’s members to earn their

livelihood processing fish than the Groundfish Plan amendment. These new issues triggered WCSPA’s right to intervene. Whereas WCSPA had been content to participate in this

case as an amicus, it consistently intervened in separate

actions that challenged the specifications/quotas. The most

reasonable inference from this pattern of litigation is that

WCSPA concluded that NMFS could adequately protect

WCSPA’s interests as to Groundfish Plan amendments at

issue in this case, but that NMFS could not adequately protect

WCSPA’s interests as to specifications at issue in the other

actions.

Thus, WCSPA had no cause to intervene in this case until

the filing of the Fifth Amended Complaint. Given the pattern

of litigation set out above, in which NRDC challenged successive Groundfish Plan amendments in this case and annual/biennial specifications in separately filed actions, WCSPA

had no reason to know that NRDC would one day challenge

the 2009-10 specifications not by continuing its practice of

commencing a separate action, but by amending its complaint

in this case. WCSPA therefore had no reason to intervene in

this case prior to the filing of the Fifth Amended Complaint.

See Alisal, 370 F.3d at 923 (“A party must intervene when he

knows or has reason to know that his interests might be

9040 WEST COAST SEAFOOD PROCESSORS v. NRDC
adversely affected by the outcome of litigation.” (internal

quotation marks omitted)); cf. United States v. Washington,

86 F.3d 1499, 1506 (9th Cir. 1996) (“A failure to realize that

one’s interests are in jeopardy until very late in the proceedings may make a late motion to intervene ‘timely.’ ”).

Accordingly, the magistrate judge’s finding that WCSPA’s

motion to intervene in this case was long delayed, for no

apparent reason, is without support in inferences that may be

drawn from facts in the record. Thus, in light of all the factors

that bear on timeliness, the magistrate judge abused his discretion when he denied WCSPA’s motion to intervene as

untimely.

III.

For the reasons set out above, I conclude that the case is

capable of repetition and the magistrate judge erred when he

denied WCSPA’s motion to intervene as of right. I therefore

respectfully dissent. 

WEST COAST SEAFOOD PROCESSORS v. NRDC 9041