Activist Judge Bush Whacked by the Ninth Circuit Court

Earlier this month, the Ninth Circuit Court of Appeals in Seattle held that Chesapeake Energy was wrongly denied intervention in litigation challenging numerous Bureau of Land Management (BLM) oil and natural gas lease sales in the District Court of Idaho. Environmental groups have repeatedly challenged sales conducted since 2015, primarily in five lawsuits in the district courts of Idaho, Montana, and Washington, DC. The latest ruling represents a backfire in the plaintiffs’ plans to choose those jurisdictions and sidestep Wyoming, Colorado or Utah (the states where the vast majority of the leases were issued) as they forum shopped for activist judges who would put a finger on the scale and rule in their favor.

Judge Ronald Bush in the District Court of Idaho lived up to the plaintiffs’ expectations, as he denied requests to transfer the lawsuits to the states where the leases are held, repeatedly ruled in the plaintiffs’ favor while ignoring BLM and the Alliance’s arguments, and overstepped the court’s authority by canceling valid existing lease rights. Nevertheless, the Department of Justice (DOJ), the State of Wyoming, and Western Energy Alliance appealed that decision to the Ninth Circuit, and the order on Chesapeake’s intervention suggests the circuit court will not look kindly on Judge Bush’s ruling.
 
Although the merits of our appeals weren’t considered at this stage, the Circuit Court faulted Judge Bush for failing to grant Chesapeake’s intervention, citing the ”the significant financial and property interests at stake.” The Alliance repeatedly argued before Judge Bush that BLM leases constitute real property rights, a view he refused to adopt, and the Ninth Circuit has now acknowledged we’re correct.
 
The court also showed no sympathy for Judge Bush’s order denying companies the chance to intervene given the wide latitude he gave the environmental plaintiffs to challenge numerous lease sales in states outside of his jurisdiction. The Ninth Circuit’s decision stated “the prejudice described by the District Court is merely the likelihood that Plaintiffs might have to confront additional briefing and arguments. But that is a predictable risk when challenging over 2,200 leases, across vast swathes of the American West, in a single action. That this litigation may become more tangled and complex with the addition of interested parties is not a basis for denial of intervention.”
 
Furthermore, the panel went out of their way to criticize Judge Bush’s handling of the case. Specifically, the Ninth Circuit notes the Alliance was “given a mere 10 pages in its Phase One merits brief, despite the fact that there were 932 leases at issue,” which was part of a pattern of limiting participation in the case from the parties who would be most affected. While DOJ and the State of Wyoming appropriately advanced the legal theories for upholding the lease sales, Judge Bush completely ignored the real world impacts of his decision by refusing to allow Chesapeake and other leaseholding companies to intervene and by only granting the Alliance a limited chance to advance practical arguments in our brief brief and at oral argument.
 
While our appeals are still pending in the Ninth Circuit, the case will now be sent back to the District Court of Idaho for further proceedings. This is significant because Judge Bush has since retired, and his replacement, Judge Raymond Patricco, must now grapple with the impacts of the Ninth Circuit’s order and will hopefully note well the panel’s views on his predecessor’s decisions in this case. We’re optimistic the new judge will follow the letter of the law, rather than issuing a ruling that advances a preferred policy outcome, and so too the Ninth Circuit when our appeals are decided.

Author

Tripp Parks, Vice President of Government Affairs