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finding motion to intervene timely where "it does not appear that [the intervenor's motion or pleading] has raised 'new issues or matters' that are well beyond the scope of claims and defenses raised by the existing parties"
Summary of this case from Lee v. Pep Boys- Manny, Moe & Jack of Cali.Opinion
No. CIV. S-05-629 LKK/GGH.
May 23, 2006
ORDER
Placer Ranch, Inc. ("Placer Ranch") seeks to intervene pursuant to Fed.R.Civ.P. 24(a) or, in the alternative, pursuant to Fed.R.Civ.P. 24(b). Placer Ranch owns a 2,213-acre parcel in Western Placer County, which is the site of a proposed mixed-use development.
The underlying action involves claims brought by Butte Environmental Council, et al. ("environmental groups" or "plaintiffs") under the Endangered Species Act, 16 U.S.C. §§ 1531- 1544 ("ESA"), and the Administrative Procedure Act, 5 U.S.C. § 706(2)(A) ("APA"), against Gale Norton, the Secretary of the Interior, and the United States Fish and Wildlife Service (collectively, "FWS."). Plaintiffs challenge an FWS final rule designating critical habitat for fifteen vernal pool species in California and Southern Oregon, including the vernal pool fairy shrimp. In August 2003, FWS' final rule designated all 2,213 acres of the Placer Ranch property as critical habitat for the fifteen vernal pool series. 68 Fed. Reg. 46684 (2003) ("August 2003 final rule"). The August 2003 final rule was remanded, in part, by an order of this court dated October 28, 2004.
Plaintiffs include Butte Environmental Council, Defenders of Wildlife, California Native Plant Society, San Joaquin Raptor and Wildlife Rescue Center, Sierra Foothills Audubon Society, and Vernalpools.org.
See Butte Envtl. Council v. Norton, Civ. No. S-04-0096 (E.D. Cal. Oct. 29, 2004) (Shubb, J.).
On August 11, 2005, the Service issued a revised final rule designating critical habitat for the vernal pool species. 70 Fed. Reg. 46924(2005) ("August 2005 final rule"). The August 2005 final rule excluded the Placer Ranch property from the critical habitat designation along with the rest of the Census Tract 06061021301 "based on economic impacts." Id. at 46931. Plaintiffs now challenge the August 2005 final rule on several accounts, including the "economic impacts" analysis upon which FWS relied on to exclude the Placer Ranch property and other properties from critical habitat designation. Plaintiffs seek, inter alia, an order declaring that defendants have violated the two aforementioned statutes and directing defendants to issue a revised and lawful critical habitat designation for the fifteen vernal pool species. Compl. at 17.
Specifically, plaintiffs allege that FWS unlawfully relied upon an inadequate analysis of economic impacts that overestimated potential costs of designation, as well as underestimated and disregarded potential benefits of designation, to exclude 23 census tract areas. Compl. at 2. Plaintiffs aver that FWS unlawfully excluded many areas — including National Monuments, National Wildlife Refuges, and lands overlapping with habitat conservation plans — based on inadequate existing protections. Id. Finally, plaintiffs contend that FWS failed to provide public notice and to follow comment procedures for critical habitat exclusion. Id. at 15-16.
Placer Ranch seeks to intervene in Civ. No. S-05-0524 LKK/PAN and does not plan to take a position with respect to the issues raised by the other parties in Home Builders Association of Northern California, which was consolidated with the aforementioned case on January 13, 2006. Mot. to Intervene at 1. Plaintiffs Butte Environmental Council, et al., oppose this motion, contending that Placer Ranch failed to intervene in a timely manner. Opp'n at 2. I decide the matter based on the pleadings and the parties' papers without oral argument.
Home Builders Assoc. of Northern California, et al. v. FWS, et al., Civ. No. S-05-0629 LKK/GGH, the lead case, involves a challenge to the Service's same final rules designating critical habitat for the vernal pool species. Whereas Home Builders Assoc. of Northern California and other building industry entities are challenging various aspects of the critical habitat designation which they argue is overinclusive, Placer Ranch seeks to intervene in Butte Environmental Council, et al., Civ. No. S-05-2524-LKK/JFM, to defend the exclusion of its property from the critical habitat designation. In other words, Placer Ranch seeks to defend the status quo.
Statements of non-opposition have been filed by the City of Suisun, federal defendants, and plaintiffs Home Builders Association of Northern California, et al.
Because oral argument will not be of material assistance, the Court orders this matter submitted on the briefs. Local Rule 78-230(h). Further, the court notes that although this motion was noticed to be heard on the court's June 12, 2006 Law and Motion calendar, the court resolves it in an expedited fashion because on May 11, 2006, plaintiffs Butte Environmental Council et al. ("environmental groups") wrote the court to request the court to act expeditiously in granting or denying the motion to intervene because proposed intervenor, Placer Ranch, filed an opposition to plaintiffs' brief as proposed intervenors on May 5, 2006. The environmental groups noted that "absent an early decision, environmental groups will have to research and brief arguments that may ultimately be untimely." The court resolves the motion after receipt of Placer County's reply brief, which was not filed until after May 16, 2006.
II. ANALYSIS
Placer Ranch seeks to intervene as of right under Fed.R.Civ.P. 24(a). Below, I explain why Placer Ranch's motion must be granted.A. INTERVENTION AS A MATTER OF RIGHT
An order granting intervention as of right is appropriate if "(1) the applicant's motion is timely; (2) the applicant has asserted an interest relating to the property or transaction which is the subject of the action; (3) the applicant is so situated that without intervention the disposition may, as a practical matter, impair or impede its ability to protect that interest; and (4) the applicant's interest is not adequately represented by the existing parties." County of Orange v. Air California, 799 F.2d 535, 537 (9th Cir. 1986), cert. denied, 480 U.S. 946 (1987).
The Ninth Circuit has held, often in the context of environmental disputes, that "Rule 24 is broadly construed in favor of intervention." United States v. Washington, 86 F.3d 1499, 1503 (9th Cir. 1996); Donnelly v. Glickman, 159 F.3d 405, 409 (9th Cir. 1998) ("In determining whether intervention is appropriate, we are guided primarily by practical and equitable considerations. We generally interpret the requirements broadly in favor of intervention.") Courts are to "take all well-pleaded nonconclusory allegations in the motion to intervene, proposed complaint or answer in intervention, and declarations supporting the motion as true absent sham, frivolity or other objections."Southwest Center for Biological Diversity v. Berg, 268 F.3d 810, 820 (9th Cir. 2001).
The test for intervention should be applied with an eye on practical consideration. United States v. Stringfellow, 783 F.2d 821, 826 (9th Cir. 1986) (citing Fed.R.Civ.P. 24(a)(2) advisory note 9) ("if an [applicant] would be substantially affected in a practical sense by the determination made in an action, [the applicant] should, as a general rule, be entitled to intervene. . . .")).
1. Timeliness
Placer Ranch argues that it has moved to intervene in a timely fashion. The only opposition to this motion is filed by Butte Environmental Council, et al., ("environmental groups) and the only argument raised by the environmental groups is that Placer Ranch's motion is untimely. I cannot agree.
Timeliness is measured by reference to "(1) the stage of the proceeding at which an applicant seeks to intervene, (2) the prejudice to other parties; and (3) the reason for the length of the delay." County of Orange v. Air Calif., 799 F.2d 535, 537 (9th Cir. 1986); United States v. Carpenter, 298 F.2d 1122, 1125 (9th Cir. 2002). "Timeliness is a flexible concept; its determination is left to the district court's discretion."United States v. Alisal Water Corp., 370 F.3d 915, 921 (9th Cir. 2004) (citation omitted).
The Ninth Circuit reviews for abuse of discretion a district court's determination that an application for intervention is untimely. United States v. Carpenter, 298 F.2d 1122, 1124 (9th Cir. 2002).
The environmental groups contend that Placer Ranch did not intervene in a timely fashion because the suit is at "an advanced stage." Opp'n at 2. They point out that Home Builders, the lead case, was filed over a year ago, and that the instant suit was filed five months ago. They also note that the court has issued several orders, including an order consolidating the cases, an order setting the summary judgment briefing schedule, and that the briefing has already began about a month ago. Id. Finally, the environmental groups contend that they would be prejudiced if Placer Ranch's motion is granted because they would have to address new legal arguments not raised by federal defendants.
In considering the three factors set forth by the Ninth Circuit, first, the motion is filed at an early stage in the proceedings. Although the court has issued several orders in this case, the case is not at an "advanced stage" because no orders have been issued with regard to the merits. Ninth Circuit authority supports the court's conclusion that intervention should not be denied based on this argument. See, e.g., County of Orange v. Air Calif., 799 F.2d at 538 (filing a motion after the parties had come to an agreement following five years of litigation weighs heavily against intervention); Calif. Dept. of Toxic Substances Control, 309 F.3d 1113, 1119 (9th Cir. 2002) (intervention not appropriate where the parties have settled and more than six years after litigation commenced);United States v. State of Oregon, 913 F.2d 576, 588-89 (9th Cir. 1990) (district court did not abuse its discretion by denying intervention when intervention was sought after settlement involving a compromise following four years of negotiation). Because Placer Ranch moved to intervene less than five months after the environmental groups filed their complaint, and because no substantive orders have been issued, the court holds that the motion was filed at an early stage of the proceedings.
Secondly, the environmental groups' argument that they would be prejudiced by Placer Ranch's intervention is without merit. The environmental groups maintain that they would be prejudiced because they would have to address new arguments and had a "mere three weeks to respond to these arguments." They argue that intervention should be denied because Placer Ranch has raised issues which are "well beyond the scope of claims and defenses raised by existing parties." Opp'n at 3. The type of prejudice cited by the environmental groups does not rise to the level which the Ninth Circuit has found to be enough to preclude intervention. In most cases, the Ninth Circuit has found prejudice where the passage of time weighs against intervention because the court has resolved a number of issues on the merits. See supra at 7. As discussed above, the passage of time does not weigh against intervention. Further, based on the court's examination of Placer Ranch's opposition brief, it does not appear that it has raised "new issues or matters" that are well beyond the scope of claims and defenses raised by the existing parties. As Placer Ranch points out, they make the same fundamental arguments as those made by federal defendants. That is, that FWS acted lawfully to exclude Placer Ranch and other properties from the critical habitat designation for the vernal pool species. Finally, the court is tasked with considering the reason for the delay. The court notes that although Placer Ranch has not presented a reason for not moving to intervene sooner, the court concludes that it was reasonable for Placer Ranch not to be aware of the litigation until March 2006, three months after this suit was filed, and that it was also reasonable not to file the motion to intervene until May 5, 2006.
Indeed, the court concludes that three weeks is more than sufficient time to respond to Placer Ranch's thirty-five page brief.
For all the reasons stated above, the court concludes that Placer Ranch filed their motion to intervene in a timely fashion.
2. The Interests of the Intervenors
Placer Ranch argues, and no party disputes, that it has protectible interests in this litigation. The Ninth Circuit has held that a "non-speculative, economic interest may be sufficient to support a right of intervention" when the interest is "concrete and related to the underlying subject matter of the action." United States v. Alisal Water Corp., 370 F.3d 915, 919-920 (9th Cir. 2004) (citation omitted). "It is generally enough that the interest is protectible under some law, and that there is a relationship between the legally protected interest and the claims at issue." Sierra Club v. U.S.E.P.A., 995 F.2d 1478, 1484 (9th Cir. 1993). Economic interests cannot be "based upon a bare expectation." Southwest Center for Biological Diversity v. Berg, 268 F.3d 810, 819 (9th Cir. 2001).
First, Placer Ranch has an interest that is protectible under the law. Placer Ranch owns 2,213 acres of property in fee simple, which was originally designated as critical habit in August 2003. Rights in real property are undoubtedly protected by both federal, state, and local laws, as well as under the common law. Secondly, there is a relationship between the legally protected interest and the causes of action alleged by plaintiffs. In the case of Placer Ranch, it was ultimately excluded from the designation based on the economic analysis impact published on June 30, 2005 and on subsequent public comment. The environmental groups allege that FWS "unlawfully relied upon inadequate analysis of economic impacts that overestimated potential costs of designation as well as underestimated and disregarded potential benefits of designation. . . ." Compl. at 2. Thus, as Placer Ranch notes, the environmental groups seek to have the basis for exclusion of the Ranch "declared invalid and to have the Ranch designated as critical habitat for the vernal pool fairy shrimp."
I conclude that Placer Ranch has a cognizable interest sufficient to support intervention.
3. Impairment of the Interests of the Applicants
To meet the impairment prong, applicants need only demonstrate that "disposition of the lawsuit may adversely affect the applicant's interest if intervention is not granted." United States v. State of Washington, 86 F.3d 1499, 1503 (9th Cir. 1996). Rule 24(a)'s "impairment" requirement addresses whether, as a practical matter, a denial of intervention would impede a prospective intervenor's ability to protect its interests in the subject of the action. As the Advisory Committee Notes for the 1966 amendments to Rule 24(a) explain, "[i]f an absentee would be substantially affected in a practical sense by the determination made in an action, he should, as a general rule, be entitled to intervene." Fed.R.Civ.P. 24 Advisory Committee's Note to 1966 Amendments.
Placer Ranch states that disposition of this case would impair or impede its interests. Mot. to Intervene at 11. Indeed, if plaintiffs succeed, and the court declares that defendants are in violation of ESA and the APA, it seems clear that Placer Ranch would be affected "in a practical sense" as the designation of critical habitat would affect the permissible uses of its 2,213 acres of property. Further, as the court explained in its order granting intervention to Tsakopoulos in the lead case, this court's resolution of the validity of the FWS critical habitat designation would have some preclusive effect on later challenges to that same FWS designation. Issue preclusion and stare decisis have been held to prevent an applicant from being able to protect its interests. United States v. Stringfellow, 783 F.2d 821, 826 (9th Cir. 1986), vacated on other grounds sub nom Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370 (1987).
In sum, proposed intervenors have significant interests that are at stake in this litigaiton.
4. Adequacy of Representation
The final factor asks whether the interest of the party seeking to intervene are adequately represented by other parties. The factors governing whether existing parties represent intervenor's interests include "(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." Northwest Forest Resources Council v. Glickman, 82 F.3d 825, 838 (9th Cir. 1996).
An applicant for intervention has the burden to demonstrate that its interests may not be adequately represented by the existing parties to the suit." Blake v. Pallan, 554 F.2d 947, 954 (9th Cir. 1977); Sagebrush Rebellion, Inc. v. Watt, 713 F.2d 525, 528 (9th Cir. 1983). The Supreme Court has explained that this burden is "minimal." Trbovich v. United Mine Workers, 404 U.S. 528, 538 n. 10 (1972). "[T]he Rule is satisfied if the applicant shows that the representation of his interest `may be' inadequate." Id. Placer Ranch meets this test.
First, the building industry entities that are already parties to this litigation (they are plaintiffs in the lead case), including Home Builders Association of Northern California, challenge various aspects of the critical habitat designation. Unlike those building industry entities, Placer Ranch seeks to intervene to defend the exclusion of its property from designation and seeks to maintain the status quo.
Placer Ranch rightly notes that the parties who most closely come to representing its interests are the federal defendants, who are also seeking to defend the status quo. It is true that there is an assumption of adequacy when the government is acting on behalf of a constituency that it represents. United States v. City of Los Angeles, 288 F.3d 391 (9th Cir. 2002). That assumption is inapplicable here. As Placer Ranch maintains, its interests are not identical to the present defendants, although it shares with the present defendants a desire for continued approval of the present critical habitat designation. The federal defendants' primary interest must be compliance with federal laws, rather than in protecting Placer Ranch's property interests. These divergent interests may conceivably lead to litigation strategies on the part of named defendants which will not adequately represent the interests of Placer Ranch.
All the above convinces the court that Placer Ranch satisfies the final criterion for intervention.
III. CONCLUSION
As the court noted previously in orders related to motions to intervene filed by the City of Suisun and Tsakopoulous, Placer Ranch is restricted to raising arguments which relate to the issues concerning the species on the land that it owns, and that it will not raise any arguments connected with the related case.
For the foregoing reasons, Placer Ranch's motion to intervene pursuant to Fed.R.Civ.P. 24(a) is GRANTED with the restrictions noted above.
Because I have determined that Placer Ranch is entitled to intervention as a matter of right, it is not necessary to discuss whether they are entitled to permissively intervene pursuant to Fed.R.Civ.P. 24(b).
IT IS SO ORDERED.