United States Court of International Trade

Slip Op. 22-52

Before the Court in GreenFirst Forest Products Inc., et. al. v. United States, Court No. 22-00097, Slip Op. 22-52 (May 20, 2022) was the motion of the Committee Overseeing Action for Lumber International Trade Investigation or Negotiations’ (“the Coalition”) motion to intervene in plaintiff’s case. Plaintiff’s filed the case to challenge the Department of Commerce’s (“Commerce”) decision not to conduct a changed circumstances review (“CCR”) of the countervailing duty (“CVD”) order covering softwood lumber from Canada after plaintiff acquired a Canadian lumber and newsprint business. The Coalition, of domestic companies, then moved to intervene in this case.

The Court first examined if the Coalition was allowed to intervene as of right. The Court will grant intervention as of right motions “when the movant establishes: (1) the motion is timely; (2) the movant asserts a legally protectable interest in the property at issue; (3) the movant’s interest is ‘of such a direct and immediate character that the intervenor will either gain or lose by the direct legal operation and effect of the judgment’; and ( 4) the movant’s interest will not be adequately represented by the government.” Id. at 8. The Court said that here “the Coalition has not met its burden in demonstrating a direct, immediate, or legally protectable interest in this case or that the Defendant will not adequately represent the Coalition’s interests.” Id. at 9. “The Coalition does not have a legally protectable interest in this action because this action is limited to the question of whether Commerce arbitrarily or capriciously decided not to conduct a CCR.” Id. at 10. In addition, the Court said “Defendant is perfectly capable of defending Commerce’s decision, and the Coalition does not point to any aspect of the case in which its position differs from the Defendant’s.” Id. at 13. As such The Coalition failed to meet its burden to demonstrate that it has a right to intervene.

The Court then examined whether permissive intervention could be allowed. The Court, in its discretion, “may permit a party to intervene under CIT Rule 24(b)(1)(B) if the proposed intervenor ‘has a claim or defense that shares with the main action a common question of law or fact.” Id. at 15. The Court said that “the Coalition does not have a defense to GreenFirst’s claims because the Coalition will not be ‘adversely affected or aggrieved’ as a result of the court’s resolution of GreenFirst’s claims in this action.” Id. at 15. As such, the motion for intervention was declined.