Page 1 - NORTHWEST RIVERPARTNERS MOTION FOR INTERVENTION

78903994.1 0054995-00001

Beth S. Ginsberg, OSB #070890

beth.ginsberg@stoel.com

Jason T. Morgan, WSBA #38346 (Pro Hac Vice)

jason.morgan@stoel.com

STOEL RIVES LLP

600 University Street, Suite 3600

Seattle, WA 98101

Telephone: (206) 624-0900

Facsimile: (206) 386-7500

Attorneys for (Proposed) Intervenor-Defendant Northwest RiverPartners

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

AUDUBON SOCIETY OF PORTLAND, 

WILDLIFE CENTER OF THE NORTH 

COAST, ANIMAL LEGAL DEFENSE 

FUND, CENTER FOR BIOLOGICAL 

DIVERSITY, FRIENDS OF ANIMALS,

Plaintiffs,

v.

U.S. ARMY OF ENGINEERS, U.S. FISH 

AND WILDLIFE SERVICE, USDA 

WILDLIFE SERVICES,

Defendants.

Case No.: 3:15-cv-00665-MO

NORTHWEST RIVERPARTNERS’ 

MOTION FOR INTERVENTION 

PURSUANT TO FED. R. CIV. P. 24 

Expedited Hearing Requested

MOTION TO INTERVENE AND FOR EXPEDITED CONSIDERATION

Northwest RiverPartners (“RiverPartners”) respectfully moves to intervene in this lawsuit 

as a defendant pursuant to Fed. R. Civ. P. 24(a) and/or (b) and requests that this Court rule on 

Case 3:15-cv-00665-SI Document 3 Filed 04/24/15 Page 1 of 16
Page 2 - NORTHWEST RIVERPARTNERS MOTION FOR INTERVENTION

78903994.1 0054995-00001

this motion expeditiously. The motion is based on RiverPartners’ memorandum, set out below, 

and the accompanying Declaration of its Executive Director, Terry Flores. 

Plaintiffs’ counsel, Dan Rohlf, represented to the undersigned counsel that Plaintiffs 

would be filing a motion for preliminary injunction on Monday, April 27th, and would be 

seeking a hearing on the motion on May 8th. Mr. Rohlf also indicated that Plaintiffs will oppose 

RiverPartners’ intervention motion. Counsel for the government, Stephen Finn represents that 

the government will not oppose this motion.

In order to meaningfully participate in the injunction proceedings, RiverPartners will 

need expedited consideration of this motion and therefore requests that the Court initiate a phone 

conference on Monday April 27, 2015 to address these timing issues. 

Respectfully submitted this 24th day of April, 2015.

/s/ Beth S. Ginsberg ______________

Beth S. Ginsberg, OSB #070890

Jason T. Morgan, WSBA #38346 (Proposed Pro 

Hac Vice)

Attorneys for (Proposed) Intervenor-Defendant 

 Northwest RiverPartners

600 University Street, Suite 3600

Seattle, WA 98101

(206) 386-7527

(206) 386-7500 Fax

beth.ginsberg@stoel.com

jason.morgan@stoel.com

Case 3:15-cv-00665-SI Document 3 Filed 04/24/15 Page 2 of 16
Page 3 - NORTHWEST RIVERPARTNERS MOTION FOR INTERVENTION

78903994.1 0054995-00001

I. INTRODUCTION

Northwest RiverPartners (“RiverPartners”) hereby moves to intervene in this case as a 

defendant pursuant to Federal Rule of Civil Procedure (“Rule”) 24 (a)(2) or, in the alternative, 

(b). Plaintiffs in this case have sued the U.S. Army Corps of Engineers (“Corps”) challenging 

what they refer to as narrow or limited analyses under the National Environmental Policy Act 

(“NEPA”) concerning the Corps’ decision to control salmon predation by killing double-crested 

cormorants (“cormorants”) near East Sand Island in the Columbia River estuary. 

Cormorants feed on salmon and the federal government has literally spent billions of 

dollars attempting to restore endangered salmon species in the Columbia River Basin. Plaintiffs 

challenge a key provision in the Biological Opinion (“BiOp”) governing the ongoing operation 

of the Federal Columbia River Power System (“FCRPS”), which is known as Reasonable and 

Prudent Alternative (“RPA”) 46. RPA 46 requires the Corps to control salmon predation by, 

inter alia, shooting cormorants and destroying their nests. Plaintiffs contend that the Corps 

should have first conducted a broader NEPA analysis to determine whether system-wide 

structural and operational modifications of the FCRPS could have first been employed to 

improve salmon populations before resorting to cormorants control. See Dkt 1 (“Complaint”) at 

¶¶ 1-2. Plaintiffs seek to enjoin the Corps from carrying out the requirements of RPA 46, and

other measures contained in its 2014 Record of Consultation and Statement of Decision 

(“ROCASOD”) governing the Corps’ operation of the federal hydropower system. Complaint ¶ 

149.

RiverPartners -- a broad-based alliance of utilities, businesses, navigational and 

agricultural interests including the direct users, or the priority customers, of the Bonneville 

Case 3:15-cv-00665-SI Document 3 Filed 04/24/15 Page 3 of 16
Page 4 - NORTHWEST RIVERPARTNERS MOTION FOR INTERVENTION

78903994.1 0054995-00001

Power Administration (“BPA”)1-- has an immediate and direct interest in RPA 46 and, more 

generally, the BiOp and NEPA analyses governing the ongoing operation of the hydropower 

system. Declaration of Terry Flores at ¶¶ 3-4. The relief Plaintiffs seek in this case is an Order: 

(1) enjoining the Corps from undertaking the directives required of it under RPA 46 (Complaint, 

Prayer for Relief ¶8); and (2) requiring the Corps to conduct a system-wide NEPA evaluation of 

operational, structural and other measures it could take, including additional spill, flow and dam 

breaching or wholesale dam removal, as among the alternatives to cormorants control. 

Complaint at ¶¶ 87, 155-156. Contending that the “Corps has a significant interest in operating 

dams in a way that maximizes revenue generation from power sales” instead of in a way that 

protects fish (Complaint at ¶ 6), Plaintiffs more broadly also ask this Court to vacate and set 

aside the Corps’ ROCASOD calling for implementation of FCRPS operations consistent with 

NMFS’s 2014 BiOp. Complaint, Prayer For Relief, ¶ 1. 

RiverPartners has a significant and protectable interest in the hydrosystem and the power 

that is generated therefrom. It also has a direct and immediate interest in the FCRPS BiOp as a 

whole and is, and has been, a long-time active defendant-intervenor in the lawsuit currently 

pending in this Court challenging that BiOp. Flores Decl. at ¶ 4. RiverPartners’ decade-long 

involvement in the FCRPS BiOp lawsuit stems from its interest in ensuring that the hydrosystem 

remains intact and fully operational, that dam configurations remain as they are, that unnecessary 

spill and flow are not implemented as part of any revised BiOp RPA, and that mitigation 

measures contained in the BiOp’s RPA are based on the best science commercially available. 

Flores Decl. at ¶ 4. RiverPartners commented on the Draft FCRPS Biological Opinion, on the 

Corps’ proposed avian management measures contained in RPA 46, and on the Corps’ 

 1 BPA transmits and distribute power generated from the FCRPS.

Case 3:15-cv-00665-SI Document 3 Filed 04/24/15 Page 4 of 16
Page 5 - NORTHWEST RIVERPARTNERS MOTION FOR INTERVENTION

78903994.1 0054995-00001

supporting Draft Environmental Impact Statement. Flores Decl. at ¶ 8. While RiverPartners

supports the governments’ avian predation program, it believes it does not address the crisis 

quickly enough to avert the disaster it portends to the endangered salmon species the government 

is attempting to protect. Id. at ¶10. 

II. FACTUAL BACKGROUND

A. RiverPartners

RiverPartners is a 501(c)(6) non-profit corporation representing a broad-based alliance of 

utilities, businesses, navigational and agricultural interests throughout the four Pacific Northwest 

states bordering the Columbia/Snake rivers. Flores Decl. at ¶ 3. RiverPartners is a coalition of 

more than 100 entities including farmers, industrial facilities, corporations, ports, and public and 

privately owned utilities. Id. The alliance formed to ensure that the FCRPS, which provides the 

region with myriad economic and environmental benefits-- including carbon-free renewable 

energy, flood control, irrigation, commerce, navigation and recreation-- continues to co-exist

with robust, viable and self-sustaining populations of listed salmonids and steelhead. Id. at ¶ 4. 

RiverPartners is a defendant-intervenor in National Wildlife Federation, et al., v. National 

Marine Fisheries Service, No.3:01-cv-0640-SI, currently pending in this Court before Judge 

Simon. Id. RiverPartners has also intervened in other cases brought by allies of Plaintiffs’ 

challenging aspects of the FCRPS BiOp and seeking to alter the operation of the power projects. 

Id. at ¶ 9.

B. The Relief Requested By Plaintiffs In This Lawsuit Will Harm 

RiverPartners’ Members’ Interests

Plaintiffs seek an Order enjoining the Corps from carrying out the measures it committed 

to take to improve salmon returns in RPA 46, and in its ROCASOD more generally. See supra at 

3; Complaint at ¶¶ 149, 156. The ROCASOD is the action through which the Corps documented 

Case 3:15-cv-00665-SI Document 3 Filed 04/24/15 Page 5 of 16
Page 6 - NORTHWEST RIVERPARTNERS MOTION FOR INTERVENTION

78903994.1 0054995-00001

its decision to implement the measures contained in the RPA for the FCRPS BiOp, including, but 

not limited to, RPA 46. See ROCASOD dated February 14, 2014, available at 

https://www.salmonrecovery.gov/. The Corps operates and maintains the hydropower projects 

comprising the FCRPS for multiple purposes, including flood control, navigation, hydropower 

generation, recreation, fish and wildlife, irrigation and recreational interests. Id. at 3. 

Among the many measures the Corps committed to undertake in furtherance of the 2014 

Supplemental FCRPS BiOp are the installation and operation of surface passage structures, 

bypass improvements, use of spill, fish transport, management of water releases from storage 

reservoirs for flow augmentation and water temperature moderation. Id. at 4, n.9. As explained 

in the ROCASOD, these efforts focus on actions to improve the survival of listed salmon and 

steelhead at the dams to meet adult and juvenile performance standards. They also focus on 

expanding control of avian predators, improving estuary habitat, and implementing hatchery 

reform actions. Id.

Plaintiffs, however, believe these measures are insufficient and are suing the Corps to 

require the agency to conduct a comprehensive NEPA analysis encompassing a broader suite of 

alternatives to RPA 46 and the other measures implemented through the ROCASOD, including 

more spill, more flow, reservoir drawdown, and presumably dam breaching. Complaint at ¶¶ 87, 

155-156. Invalidation of the Corps’ ROCASOD would call into question the legal viability of the 

FCRPS RPA, including any component part thereof. RiverPartners supports the FCRPS BiOp 

and the ROCASOD as a whole, and the relief Plaintiff seeks in this lawsuit would invalidate and 

further enjoin the Corps from undertaking many of the actions implemented therein. Flores 

Decl. at ¶ 7. 

Case 3:15-cv-00665-SI Document 3 Filed 04/24/15 Page 6 of 16
Page 7 - NORTHWEST RIVERPARTNERS MOTION FOR INTERVENTION

78903994.1 0054995-00001

In addition, RiverPartners’ members, and their constituents, finance the mitigation 

measures contained in the BiOp and the Corps’ ROCASOD. Id. The additional measures 

Plaintiffs prefer as part of the ROCASOD would be similarly paid for by RiverPartners. Id. 

RiverPartners’ members also rely on the FCRPS for electricity. Id. at ¶ 5. Some of 

RiverPartners’ members are public utilities that are preference customers under the Pacific 

Northwest Electric Power Planning and Conservation Act, of the Bonneville Power Agency 

(“BPA”), which markets and transmits hydropower generated at the FCRPS projects. Id. 

RiverPartners members also include privately held utilities whose customers similarly benefit 

from federal hydropower. Id. 

RiverPartners is opposed to more flow and spill and reservoir drawdown because such 

measures have not been shown to be scientifically valid, have not been shown to be helpful to 

salmon survival and recovery, and because they would reduce the clean, renewable electricity 

produced by the FCRPS and make the power it generates far more expensive to purchase and use 

and increase carbon emissions as replacement resources would be fossil fuel- based. Flores 

Decl. at ¶¶ 4,7, 10. 

III. ARGUMENT

A. RiverPartners is Entitled to Intervention As of Right

Pursuant to Rule 24(a), RiverPartners is entitled to intervention as of right to defend its 

direct interests in the FCRPS RPA generally and RPA 46 specifically. The Ninth Circuit has 

adopted a four-part test to determine whether a party should be permitted to intervene as of right: 

(1) the motion must be timely; (2) the movant must claim a “significantly protectable” interest 

relating to the property or transaction that is the subject of the action; (3) the movant must be so 

situated that the disposition of the action may, as a practical matter, impair or impede the 

Case 3:15-cv-00665-SI Document 3 Filed 04/24/15 Page 7 of 16
Page 8 - NORTHWEST RIVERPARTNERS MOTION FOR INTERVENTION

78903994.1 0054995-00001

movant’s ability to protect that interest; and (4) the movant’s interest must not be adequately 

represented by the existing parties to the action. Wilderness Soc’y v. U.S. Forest Serv., 630 F.3d 

1173, 1177 (9th Cir. 2011) (en banc). The Ninth Circuit applies this test “‘broadly in favor of 

proposed intervenors.’” Id. at 1179 (quoting United States v. City of L.A., 288 F.3d 391, 397 (9th 

Cir. 2002)). As discussed below, RiverPartners meets each of these requirements.

1. RiverPartners’ Motion Is Timely

In evaluating the timeliness of a motion to intervene, courts in the Ninth Circuit consider 

three factors: (1) the stage of the proceedings; (2) the prejudice to the other parties; and (3) the 

reasons for and length of the delay, if any. Alaska v. Suburban Propane Gas Corp., 123 F.3d 

1317, 1319 (9th Cir. 1997). This action is still in its very preliminary stages: the Complaint was 

filed on April 20, 2015 and this motion was filed only four days later on April 24. The Corps has 

not yet filed an answer and the administrative record has not been lodged. Counsel for Plaintiffs 

informed RiverPartners’ counsel that Plaintiffs plan to file their motion for preliminary 

injunction on April 27, 2015 and will request a hearing date of May 8, 2015. RiverPartners will 

agree to any proposed schedule for briefing that the existing parties to the case agree upon. 

Therefore, no prejudice, delay, or inefficiency will result.

2. RiverPartners Has A Significant Protectable Interest In the 

Challenged Agency Decisions

Whether the moving party demonstrates sufficient interest to intervene is a “practical, 

threshold inquiry” for which “[n]o specific legal or equitable interest need be established.” 

Greene v. United States, 996 F.2d 973, 976 (9th Cir. 1993), aff’d sub nom. Greene v. Babbitt, 64 

F.3d 1266 (9th Cir. 1995). As noted by the court in City of Los Angeles: 

A liberal policy in favor of intervention serves both efficient 

resolution of issues and broad access to the courts. By allowing 

parties with a practical interest in the outcome of a particular case 

Case 3:15-cv-00665-SI Document 3 Filed 04/24/15 Page 8 of 16
Page 9 - NORTHWEST RIVERPARTNERS MOTION FOR INTERVENTION

78903994.1 0054995-00001

to intervene, we often prevent or simplify future litigation 

involving related issues; at the same time, we allow an additional 

interested party to express its views before the court.

288 F.3d at 397-98 (internal quotation marks and citations omitted). Consequently, the interest 

requirement is “primarily a practical guide to disposing of lawsuits by involving as many 

apparently concerned persons as is compatible with efficiency and due process.” Id. at 398 

(internal quotation marks and citation omitted); Nuesse v. Camp, 385 F.2d 694, 700 (D.C. Cir. 

1967). The interest at issue “need not be protected by the statute under which the litigation is 

brought to qualify as ‘significantly protectable’” so long as “the interest is protectable under 

some law, and ... there is a relationship between the legally protected interest and the claims.” 

Wilderness Soc’y, 630 F.3d at 1179 (internal quotation marks and citation omitted). 

As explained above, RiverPartners has a direct and immediate interest in the RPAs that 

Plaintiffs seek to invalidate and enjoin and has actively litigated in defense of those measures in 

the BiOp lawsuit now pending before Judge Simon. Through its participation in that lawsuit, 

RiverPartners seeks to uphold the FCRPS BiOp and RPA in their entirety. This lawsuit seeks to 

enjoin RPA 46 and the Corps’ other FCRPS actions set forth in the ROCASOD, and thus to 

invalidate key portions of the underlying FCRPS BiOp which RiverPartners is actively defending 

in National Wildlife Federation v. National Marine Fisheries Service, Case No. 3:01-cv-0640-

SI.

In addition to RiverPartners’ direct interest in the FCRPS BiOp and its RPAs, 

RiverPartners has a direct and immediate interest in the electricity that the hydropower system 

generates. Some of its members are preference customers of BPA who depend on the FCRPS 

for their power. Enjoining the Corps from implementing the RPA measures is likely to lead to 

other measures that, if implemented, would make the power RiverPartners’ members rely on 

Case 3:15-cv-00665-SI Document 3 Filed 04/24/15 Page 9 of 16
Page 10 - NORTHWEST RIVERPARTNERS MOTION FOR INTERVENTION

78903994.1 0054995-00001

more expensive and carbon-emitting resources to purchase and use. These are the sorts of 

interests courts routinely find protectable under this prong of the intervention standard. 

Given the significant overlap between this case and the case pending before Judge Simon, 

to which RiverPartners is a defendant/intervenor, and given that RiverPartners has successfully 

intervened in a variety of other related FCRPS lawsuits brought by National Wildlife Federation 

and their allies over the years (Flores Declaration at ¶¶ 4, 9), this Court need not strain to easily 

find that RiverPartners has a protectable interest in the actions challenged in this lawsuit. 

3. Disposition of This Case in Plaintiffs’ Favor Would Harm 

RiverPartners’ Interests

Intervention as of right is particularly appropriate where, as here, the relief sought is 

injunctive. See City of L.A., 288 F.3d at 399; Sagebrush Rebellion, Inc. v. Watt, 713 F.2d 525, 

528 (9th Cir. 1983) (where relief sought by plaintiffs will have direct, immediate, and harmful 

effects upon a third party’s legally protectable interests, the party satisfies the “interest” test), 

aff’d sub nom. Sagebrush Rebellion, Inc. v. Hodel, 790 F.2d 760 (9th Cir. 1986). 

As demonstrated above, the relief sought in this case would directly harm RiverPartners’ 

interests in the related case pending before Judge Simon to which RiverPartners is a defendant. 

RiverPartners’ members have a direct interest in ensuring that the FCRPS BiOp RPA is 

implemented in its current state, and not enjoined and subsequently altered. Under these 

circumstances, intervention as of right are particularly compelling. United States v. Oregon, 839 

F. 2d 636,638 (9th Cir. 1988)(intervention required in circumstances where” as a practical 

matter, this litigation may impair appellants’ ability to obtain effective remedies in later 

litigation”). Intervention as of right should be granted under these circumstances. 

Case 3:15-cv-00665-SI Document 3 Filed 04/24/15 Page 10 of 16
Page 11 - NORTHWEST RIVERPARTNERS MOTION FOR INTERVENTION

78903994.1 0054995-00001

4. RiverPartners’ Interests Are Not Adequately Represented by the 

Corps

An applicant-intervenor’s burden in showing inadequate representation is minimal. 

Forest Conservation Council v. U.S. Forest Serv., 66 F.3d 1489, 1498-99 (9th Cir. 1995).

RiverPartners’ interests are sufficiently distinct from those of the Corps. The burden of 

demonstrating inadequate representation is minimal, even in a NEPA case like this one. Indeed, 

in a fairly recent en banc opinion, the Ninth Circuit has re-emphasized that “a putative intervenor 

will generally demonstrate sufficient interest for intervention of right in a NEPA action, as in all 

cases, if it will suffer a practical impairment of its interests as a result of the pending litigation.” 

Wilderness Societ,y 630 F.3d at 1180. 

RiverPartners need only show that its interests are sufficiently different from the existing 

parties such that their representation “may be” inadequate. Trbovich v. United Mine Workers of 

Am., 404 U.S. 528, 538 n.10 (1972); Sw. Ctr. for Biological Diversity v. Berg, 268 F.3d 810, 823 

(9th Cir. 2001); Nuesse, 385 F.2d at 703. 

The Court must consider:

“(1) whether the interest of a present party is such that it will 

undoubtedly make all the intervenor’s arguments; (2) whether the 

present party is capable and willing to make such arguments; and 

(3) whether the would-be intervenor would offer any necessary 

elements to the proceedings that other parties would neglect.”

City of L.A., 288 F.3d at 398 (quoting Nw. Forest Res. Council v. Glickman, 82 F.3d 825, 838 

(9th Cir. 1996)). 

RiverPartners has a pecuniary and parochial interest in ensuring that the FCRPS is not 

dismantled and that hydropower continues to be generated at all power projects operated by the 

Corps. RiverPartners also has an interest in ensuring that additional spill and flow that is not 

necessary to support a robust and healthy salmon populations not become incorporated into any 

Case 3:15-cv-00665-SI Document 3 Filed 04/24/15 Page 11 of 16
Page 12 - NORTHWEST RIVERPARTNERS MOTION FOR INTERVENTION

78903994.1 0054995-00001

amended FCRPS RPA. Flores Decl. at ¶¶ 4, 10.

In contrast, the Corps is required by law to operate the hydropower projects for a 

multitude of purposes in addition to hydropower generation, including fish and wildlife 

protection, recreation, navigation, flood control and water quality. Accordingly, although 

RiverPartners certainly supports the multiple purposes of the FCRPS, the Corps’ interests are 

broader than RiverPartners’ and therefore the Corps cannot be expected to make all the 

arguments that RiverPartners would make in defense of this lawsuit and in opposition to any 

injunction. Forest Conservation Council, 66 F. 3d at 1499 (overturning lower court’s denial of 

intervention and emphasizing that the government must represent the broad public interest and 

not just the economic and more parochial views of the timber industry). 

Moreover, the Corps could conceivably be willing to settle this case on grounds that 

RiverPartners would find objectionable in light of the Corps’ many competing public mandates 

and federal obligations. Flores Decl. at ¶10. While the Corps does not pay for the mitigation 

measures they implement, RiverPartners members’ and their constituents and customers do. The 

fish and wildlife restoration program implemented by the federal government is the largest 

restoration program for a species anywhere in the nation. It is RiverPartners’ members and their 

customers who foot that bill, amounting to several hundred million dollars every year. Id. at 

¶¶7,12.

Under these circumstances, it would strain credulity to argue (as RiverPartners believes 

Plaintiffs may argue) that the government will undoubtedly make every argument that 

RiverPartners would. RiverPartners and the government are not in lock-step, and as explained 

by RiverPartners’ Executive Director, “the government simply does not walk in our shoes.”). 

Flores Decl. at ¶10.

Case 3:15-cv-00665-SI Document 3 Filed 04/24/15 Page 12 of 16
Page 13 - NORTHWEST RIVERPARTNERS MOTION FOR INTERVENTION

78903994.1 0054995-00001

RiverPartners has different concerns than the Corps and believes the Corps has gone too 

far in agreeing to spill and flow measures in the FCRPS BiOp, even while we support it, and has 

not gone far enough in dealing with avian predators. Flores Decl. at ¶10. While RiverPartners

agrees with the plan to eliminate avian predators, it has unsuccessfully urged the Corps to be 

more aggressive in addressing these predators more quickly. Id. The Fish and Wildlife Service, 

moreover, is required by law to protect the needs of both salmon and birds, but does not need to 

consider the power needs of RiverPartners’ members. The Wildlife Services is entrusted by 

Congress to deal with predators and again has no obligation to consider the power needs of 

RiverPartners’ members. RiverPartners also cares deeply about the fate of salmon in our region, 

but does not always view the science the way the federal government does and is at times at 

logger- heads with federal agency officials on how best to address specific concerns. Id. 

Courts have routinely found the disparity between the public interests of the government 

and the private interests of project proponents sufficient to justify intervention. Forest 

Conservation Council, 66 F.3d at 1499 (inadequate representation is most likely to be found 

when the applicant asserts a personal interest that does not belong to the general public); Sierra 

Club v. Espy, 18 F.3d 1202, 1207-08 (5th Cir. 1994); Cnty. of Fresno v. Andrus, 622 F.2d 436, 

438-39 (9th Cir. 1980); Natural Res. Defense Council v. Costle, 561 F.2d 904, 912 (D.C. Cir. 

1977). As the Ninth Circuit (agreeing with the Third Circuit) recently both recognized and 

emphasized in rejecting a narrower view of intervention: 

“[t]he reality is that NEPA cases frequently pit private, state, and 

federal interests against each other. Rigid rules in such cases 

contravene a major premise of intervention- the protection of third 

parties affected by pending litigation.” 

Wilderness Society, 630 F.3d 1180 (emphasis supplied). For the reasons discussed above, 

because disposition of this case in Plaintiffs’ favor would seriously harm RiverPartners’ 

Case 3:15-cv-00665-SI Document 3 Filed 04/24/15 Page 13 of 16
Page 14 - NORTHWEST RIVERPARTNERS MOTION FOR INTERVENTION

78903994.1 0054995-00001

interests-- which are not adequately protected by the federal government-- intervention as of 

right under Rule 24(a) should be allowed as a result.

B. RiverPartners Is Also Entitled To Permissive Intervention

As with intervention as of right, motions for permissive intervention are construed 

liberally in favor of the moving party. Permissive intervention should be allowed under Rule 

24(b) as long as the applicant seeking intervention establishes that: “(1) it shares a common 

question of law or fact with the main action; (2) its motion is timely; and (3) the court has an 

independent basis for jurisdiction over the applicant’s claims.” Donnelly v. Glickman, 159 F.3d 

405, 412 (9th Cir. 1998). Under this standard, neither the inadequacy of representation nor a 

direct interest in the subject matter of the action need be shown. Kootenai Tribe of Idaho v. 

Veneman, 313 F.3d 1094, 1108 (9th Cir. 2002); 7C Charles Alan Wright et al., Federal Practice 

and Procedure § 1911 (3d ed. 2007). 

RiverPartners easily meets the test for permissive intervention as well. RiverPartners’ 

interest in protecting the FCRPS BiOp and accompanying RPA has issues of law and fact in 

common with Plaintiffs’ claims. As noted above, RiverPartners’ application for intervention is 

timely and will not prejudice the existing parties. Moreover, RiverPartners’ members (as 

preferred customers of the hydropower generated by the FCRPS, and as a long-time litigant in 

FCRPS BiOp disputes), can significantly contribute to the Court’s resolution of the issues in the 

underlying case and in the soon-to-be-filed motion for preliminary injunction. Therefore, 

permissive intervention on all claims should be granted. See generally Sierra Club v. U.S. EPA, 

995 F.2d 1478, 1483 (9th Cir. 1993) (granting intervention to third parties and stating: “Our 

adversary process requires that we hear from both sides before the interests of one side are 

impaired by a judgment.”); Kleissler v. U.S. Forest Serv., 157 F.3d 964, 971 (3d Cir. 1998)

Case 3:15-cv-00665-SI Document 3 Filed 04/24/15 Page 14 of 16
Page 15 - NORTHWEST RIVERPARTNERS MOTION FOR INTERVENTION

78903994.1 0054995-00001

(intervention allows entities and individuals affected by NEPA actions to present their positions 

to the court); City of L.A., 288 F.3d at 397-98 (liberal policy in favor of intervention allows 

interested parties to express their views before the court).

IV. CONCLUSION

For the reasons articulated above, RiverPartners requests that the Court consider and 

resolve this motion expeditiously, and grant it intervention as of right or permissive intervention 

pursuant to Fed. R. Civ. P. 24(a) and (b).

Respectfully submitted this 24th day of April, 2015.

/s/ Beth S. Ginsberg ______________

Beth S. Ginsberg, OSB #070890

Jason T. Morgan, WSBA #38346 (Proposed Pro 

Hac Vice)

Attorneys for (Proposed) Intervenor-Defendant 

 Northwest RiverPartners

600 University Street, Suite 3600

Seattle, WA 98101

(206) 386-7527

(206) 386-7500 Fax

beth.ginsberg@stoel.com

jason.morgan@stoel.com

Case 3:15-cv-00665-SI Document 3 Filed 04/24/15 Page 15 of 16
Page 16 - NORTHWEST RIVERPARTNERS MOTION FOR INTERVENTION

78903994.1 0054995-00001

CERTIFICATE OF SERVICE

I hereby certify that on April 24, 2015, I filed a true and correct copy of the foregoing 

document with the Clerk of the Court for the United States District Court – District of Oregon by 

using the CM/ECF system. Participants in this Case No. 3:13-cv-00655-MO; who are registered 

CM/ECF users will be served by the CM/ECF system.

I hereby certify that I have mailed by United States Postal Service the document to the 

following non CM/ECF participants:

United States Attorney's Office

District of Oregon

1000 S.W. Third Ave., Suite 600

Portland, Oregon 97204-2902

Telephone: (503) 727-1010

/s/ Beth S. Ginsberg

Beth S. Ginsberg, OSB #070890

Case 3:15-cv-00665-SI Document 3 Filed 04/24/15 Page 16 of 16