United States District Court, W.D. Oklahoma
CHARLES B. GOODWIN UNITED STATES DISTRICT JUDGE.
BNSF Railway Company has filed this lawsuit challenging the
constitutionality of Oklahoma's recently enacted
“Blocked Crossing Statute, ” Okla. Stat. tit. 66,
§ 190. Plaintiff's Complaint seeks declaratory and
injunctive relief and names five Defendants. Two are
municipal corporations: (1) City of Edmond, Oklahoma; and (2)
City of Davis, Oklahoma. The others are individuals sued in
their capacity as officials on the Oklahoma Corporation
Commission (“OCC”): (3) Todd Hiett (OCC
Chairman); (4) Bob Anthony (OCC Vice-Chairman); and (5) Dana
Murphy (OCC Commissioner) (collectively, the “OCC
Defendants”). See Compl. (Doc. No. 1) at 1-2.
before the Court is a Motion to Intervene (Doc. No. 25) filed
by nonparty Mike Hunter in his official capacity as Attorney
General of the State of Oklahoma. Plaintiff has filed a
Response (Doc. No. 32), to which Mr. Hunter has replied (Doc.
No. 35). No. Defendant has filed a response to the Motion.
The Motion to Intervene
Motion, the Attorney General proposes that he be permitted to
intervene in his official capacity as a Defendant and file an
answer to Plaintiff's Complaint, based upon: (i) Federal
Rule of Civil Procedure 5.1(c); (ii) Federal Rule of Civil
Procedure 24(a)(2); and (iii) Federal Rule of Civil Procedure
24(b). As outlined below, intervention of Oklahoma's
Attorney General is appropriate in this matter pursuant to
Federal Rule of Civil Procedure 24(a)(2). The Court therefore
need not address the propriety of intervention on a
constitutional challenge under Rule 5.1 or permissive
intervention under Rule 24(b).
Rule of Civil Procedure 24(a)(2) prescribes that the Court
“must permit anyone to intervene” as of right in
a pending action who can establish “(1) timeliness, (2)
an interest relating to the property or transaction that is
the subject of the action, (3) the potential impairment of
that interest, and (4) inadequate representation by existing
parties.” Fed.R.Civ.P. 24(a); Kane Cty. v. United
States, 928 F.3d 877, 889 (10th Cir. 2019). The Tenth
Circuit “has historically taken a ‘liberal'
approach to intervention and thus favors the granting of
motions to intervene.” W. Energy All. v.
Zinke, 877 F.3d 1157, 1164 (10th Cir. 2017).
lawsuit was filed on August 22, 2019, and is still in its
preliminary stages. Considering “all of the
circumstances, ” the Attorney General's request
(filed September 12, 2019) is sufficiently timely that
allowing intervention will not unduly prejudice the existing
parties. Id. (internal quotation marks omitted);
see also Doc. No. 13 (showing that the Attorney
General was served with a copy of the pleading on August 23,
Interest Relating to the Subject of the Action
Tenth Circuit has explained that “whether an applicant
has an interest sufficient to warrant intervention as a
matter of right is a highly fact-specific
determination.” Coal. of Ariz./N.M. Ctys. for
Stable Econ. Growth v. Dep't of Interior, 100 F.3d
837, 841 (10th Cir. 1996) (internal quotation marks omitted).
“A protectable interest is one that would be impeded by
the disposition of the action.” W. Energy
All., 877 F.3d at 1165 (internal quotation marks
Attorney General argues that he has an interest in defending
the enforceability of the Blocked Crossing Statute as
“the ‘chief law officer of the state.'”
Att'y Gen.'s Mot. at 4 (quoting Okla. Stat. tit. 74,
§ 18); cf. Okla. Stat. tit. 74, § 18b
(prescribing that the Attorney General has a duty to
“appear in any action in which the interests of the
state or the people of the state are at issue” and to
“defend . . . any cause or proceeding . . . in which
the state may be . . . interested”). The Court accepts
that “[a]ny ruling on the validity of the law would
impact the entire State's ability to enforce the
law” and finds that this requirement has been met.
Att'y Gen.'s Mot. at 4.
Potential Impairment of That Interest
only a “minimal burden” for a movant to show that
its interests “may be impaired or impeded by the
pending litigation.” W. Energy All., 877 F.3d
at 1167. Here, the Attorney General reasonably argues, and
Plaintiff does not dispute, that if Plaintiff succeeds on
this lawsuit with only the current parties, “the
Attorney General will not be able to defend the State law in
any forum, ” and “[t]he declaratory and
injunctive relief requested will prevent future
actions.” Att'y Gen.'s Mot. at 4. The Attorney
General has met his “minimal burden” on this
Inadequate Representation ...