Legal Standard Rule 24(a) provides the following: On timely application, the court must permit anyone to intervene who ... claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that party.

Timeliness AZL’s Motion is timely under the first criterion as it was filed just three days after Plaintiff applied for a TRO, and less than two weeks after the Complaint was served on Defendants.

Under the third intervention criterion, AZL must show that the disposition of this action “may as a practical matter impair or impede [its] ability to protect its interest.” Fed. R. Civ.

In other words, “[i]f an absentee would be substantially affected in a practical sense by the determination made in an action, [it] should, as a general rule, be entitled to intervene.” See also Fed. R. Civ.

Indeed, the Ninth Circuit has recognized that “the government’s representation of the public interest may not be ‘identical to the individual parochial interest’ of a particular group just because ‘both entities occupy the same posture in the litigation.’ ” Citizens for Balanced Use, 647 F.3d at 899 (quoting WildEarth Guardians v. U.S. Forest Serv., 573 F.3d 992, 996 (10th Cir. 2009)).

The signing ceremony took place at the South Rim of the Grand Canyon, Arizona “[t]o avoid protests that would mar a photo opportunity.”4 “[S]olemn and angry,” Kanab, Utah residents wore black arm

Case 4:22-cv-00059-DN Document 180 Filed 08/11/23 PageID.7689 Page 3 of 28 bands, released 50 black balloons, and bore signs saying, “Shame on you Clinton.”5 Northeast- based commercial fishing associations sued federal officials for “injury from the restrictions on commercial fishing” imposed by the Northeast Canyons and Seamounts Marine National Monument.6 That monument is “an area roughly the size of Connecticut that sits 130 miles off the coast of Cape Cod.”7 In 2020, the University of Hawaii and the Pacific Islands Fisheries Science Center published their results of the economic impact of Papahānaumokuākea Marine National Monument.8 President Bush proclaimed the monument, 139,793 square miles, in 20069 and President Obama expanded it to 442,781 square miles in 2016,10 resulting in millions of dollars of lost fishing revenue in the first sixteen months after the expansion.11 “The President’s unique status under the Constitution distinguishes him from other executive officials,”12 causing him to have “unreviewable Presidential discretion.”13 Chief Justice Roberts recognized “[t]he broad authority that the Antiquities Act vests in the President stands in marked contrast to other, more restrictive means” used to “preserve portions of land and sea.”14 He also pointed out that the Antiquities Act “has been transformed into a power

Case 4:22-cv-00059-DN Document 180 Filed 08/11/23 PageID.7694 Page 8 of 28 natural and historic objects, and wild life in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.”52 The process for a President to establish or enlarge a national monument under the Antiquities Act is two-fold.

Invoking ultra vires is an “attempt to avoid the shield of sovereign immunity.”122 Plaintiffs’ amended complaint does not assert that President Biden lacks the authority to withdraw federal land as national monuments.

Case 4:22-cv-00059-DN Document 180 Filed 08/11/23 PageID.7710 Page 24 of 28 constituted “final agency action” because it was “issued after extensive factfinding by the Corps” and was “typically not revisited if the permitting process move[d] forward.”170 Conversely, these Memoranda are only preliminary, internally directive, informative, and suggestive.

2 Utah Diné Bikéyah, Friends of Cedar Mesa, the Society of Vertebrate Paleontology, Archaeology Southwest, Conservation Lands Foundation, Inc., Patagonia Works, The Access Fund, and the National Trust for Historic Preservation in the United States.

4 American Anthropological Association, Archaeological Institute of America, and Society for American Archaeology 5 Motion to Intervene and Memorandum in Support, docket no. 40, filed Nov. 30, 2022; Rule 24 Motion of Grand Staircase Escalante Partners, Society of Vertebrate Paleontology, and Conservation Lands Foundation to Intervene as Defendants, docket no. 42, filed Nov. 30, 2022; Motion to Intervene Under Rule 24 And Memorandum of Law in Support of Utah Diné Bikéyah, Friends of Cedar Mesa, The Society of Vertebrate Paleontology Archaeology Southwest, Conservation Lands Foundations, Inc., The Access Fund, and the National Trust for Historic Preservation in the United States, docket no. 43, filed Nov. 30, 2022; Motion to Intervene as Defendants and Memorandum in Support, docket no. 44, filed Nov. 30, 2022.

72, docket no. 146, filed Mar. 31, 2023; Plaintiffs’ Objections to Magistrate Judge Kohler’s Order Granting Proposed SUWA Intervenors’ Motion to Intervene, docket no. 147, filed Mar. 31, 2023; Archaeological Proposed Intervenors’ Objection to Order Denying Motions to Intervene Pursuant to Fed. R. Civ.

Their perspectives and evidentiary contributions may be required if this case continues past the threshold legal issues raised in the motions to dismiss.

Deferring final decision on these parties’ intervention promotes an orderly resolution of the case and avoids significant (and potentially unnecessary) burdens on the court.

Archaeological Proposed Intervenors filed a motion1 for leave to file a reply in support of their opposition2 to Magistrate Judge Kohler’s order.3 Having considered the motion, the Court finds that there is good cause for the motion.

It is THEREFORE ORDERED that Archaeological Proposed Intervenors’ Motion for Leave to File a Reply is GRANTED.

David Nuffer United States District Judge

2 Archaeological Proposed Intervenors’ Objection to Order Denying Motions to Intervene Pursuant to Fed. R. Civ.

3 Memorandum Decision and Order on Proposed Intervenors’ Motions to Intervene, docket no. 122, filed March 17, 2023.

GSEP Proposed Intervenors filed a motion1 for leave to file a reply in support of their opposition2 to Magistrate Judge Kohler’s order.3 Having considered the motion, the Court finds that there is good cause for the motion.

It is THEREFORE ORDERED that Archaeological Proposed Intervenors’ Motion for Leave to File a Reply is GRANTED.

Archaeological Proposed Intervenors must file their reply by June 29, 2023.

David Nuffer United States District Judge

3 Memorandum Decision and Order on Proposed Intervenors’ Motions to Intervene, docket no. 122, filed March 17, 2023.