Chesapeake Bay Foundation v. Lois Alt

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 2:12-cv-00042-JPB. [999394668]. [13-2200]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-2200

LOIS ALT, d/b/a Eight is Enough; AMERICAN
FEDERATION; WEST VIRGINIA FARM BUREAU,

FARM

BUREAU

Plaintiffs – Appellees,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; CENTER FOR
FOOD SAFETY; FOOD & WATER WATCH; POTOMAC RIVERKEEPER; WEST
VIRGINIA
RIVERS
COALITION;
WATERKEEPER
ALLIANCE,
INCORPORATED,
Defendants,
and
CHESAPEAKE BAY FOUNDATION, INCORPORATED,
Appellant.

Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins.
John Preston Bailey,
Chief District Judge. (2:12-cv-00042-JPB)

Argued:

May 13, 2014

Decided:

July 14, 2014

Before TRAXLER, Chief Judge, KING, Circuit Judge, and DAVIS,
Senior Circuit Judge.

Affirmed by published opinion. Judge King wrote the opinion, in
which Chief Judge Traxler and Senior Judge Davis joined.

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ARGUED: Jon Alan Mueller, CHESAPEAKE BAY FOUNDATION, INC.,
Annapolis, Maryland, for Appellant.
James T. Banks, HOGAN
LOVELLS US LLP, Washington, D.C., for Appellees.
ON BRIEF:
Christine K. Tramontana, CHESAPEAKE BAY FOUNDATION, INC.,
Annapolis, Maryland, for Appellant. David L. Yaussy, ROBINSON &
MCELWEE PLLC, Charleston, West Virginia, for Appellee Lois Alt,
d/b/a Eight is Enough.
Joanne Rotondi, HOGAN LOVELLS US LLP,
Washington, D.C., for Appellees American Farm Bureau Federation
and West Virginia Farm Bureau.

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KING, Circuit Judge:
Plaintiff Lois Alt, a West Virginia farmer, sued the United
States

Environmental

Protection

Agency

(the

“EPA”)

in

the

Northern District of West Virginia, seeking declaratory relief
in

connection

against

her.

with

EPA

In

the

administrative
latter

enforcement

stages

of

Alt’s

proceedings
litigation,

appellant Chesapeake Bay Foundation, Incorporated (“CBF”), moved
to intervene as a defendant.

The district court denied CBF’s

intervention motion as untimely.

See Alt v. EPA, No. 2:12-cv-

00042 (N.D. W. Va. July 30, 2013), ECF No. 104 (the “Denial
Order”).

CBF appeals the Denial Order, and, as explained below,

we affirm.

I.
Alt owns and operates a chicken farm in Hardy County, West
Virginia.

In June 2011, the EPA conducted an inspection and

observed that rainwater befouled by pollutants, that is, dander,
manure, and other fine particulates, had drained from ditches on
Alt’s farm into nearby streams.

Because Alt had not obtained

any permits for such discharges, the EPA issued a Compliance
Order

to

her

on

November

14,

2011,

identifying

violations of the Clean Water Act (the “CWA”).

apparent

On June 14,

2012, Alt initiated her lawsuit against the EPA in the district
court, requesting a declaration that the Compliance Order was
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invalid

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because

“agricultural

the

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discharges

stormwater,”

permitting requirements.

from

which

her

is

farm

exempt

constituted

from

the

CWA’s

See 33 U.S.C. § 1362(14); 40 C.F.R.

§ 122.26.
On July 19, 2012, approximately a month after Alt’s lawsuit
was

filed,

Virginia

American

Farm

litigation
court

the

as

Bureau

Farm
jointly

plaintiffs.

granted

the

scheduling order.

Bureau

Federation

moved

to

Three

joint

months

motion

and

and

the

West

in

the

intervene
later,

the

district

entered

its

initial

Then, on December 6, 2012, a group of five

clean water advocacy organizations likewise moved to intervene
in

the

lawsuit

as

defendants,

alongside

the

EPA.

Shortly

thereafter, in response to the plaintiffs’ unopposed motion, the
court extended the deadlines in its scheduling order.
On
Order.

December

14,

2012,

the

EPA

withdrew

its

Compliance

About a month later, the parties jointly secured a stay

of Alt’s lawsuit while they pursued settlement negotiations with
respect

to

the

administrative

enforcement

dispute.

The

settlement discussions were not fruitful, however, and in March
2013 the EPA moved to dismiss the lawsuit, contending that its
withdrawal

of

the

proceeding moot.

Compliance

Order

rendered

the

entire

Alt disagreed, maintaining that the district

court retained jurisdiction because the EPA had not altered its
position

that

her

Hardy

County
4

farm

remained

subject

to

the

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CWA’s discharge permitting requirements.

On April 22, 2013, the

court denied the EPA’s motion to dismiss and granted the motions
of

the

clean

defendants. 1
second

time,

water

advocacy

organizations

to

intervene

as

The court then modified its scheduling order for a
directing

the

plaintiffs

to

file

any

summary

judgment motions by July 1, 2013, with the defendants to file
any cross-motions and responses by August 1, 2013.
The plaintiffs filed a joint motion for summary judgment at
the modified deadline.

The next day, July 2, 2013, CBF made its

first appearance in the Alt litigation.
by

an

extensive

outside

the

memorandum

administrative

and

In a motion accompanied

multiple

record,

CBF

exhibits

asserted

that

a

were

right

to

intervene pursuant to Federal Rule of Civil Procedure 24(a),
and, alternatively, sought permission to intervene under Rule
24(b). 2
that

In furtherance of the intervention motion, CBF contended

the

seriously

judicial
undermine

declaration
a

sought

decades-long

by

effort

Alt
to

threatened
clean

up

to
the

1

The five intervening defendants are the Center for Food
Safety; Food & Water Watch; Potomac Riverkeeper; West Virginia
Rivers Coalition; and Waterkeeper Alliance, Incorporated.
2

Rule 24 creates two intervention alternatives, both
subject to the filing of a “timely motion.” Rule 24(a) governs
“Intervention of Right,” while Rule 24(b) addresses “Permissive
Intervention.”

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Chesapeake Bay and its various tributaries. 3
the

EPA

nor

intervention

the

motion,

intervening
the

Although neither

defendants

various

plaintiffs

opposed
objected

CBF’s
on

the

basis of timeliness, among other grounds.
On July 30, 2013, the district court denied CBF’s motion to
intervene.

The court’s ruling rested solely on the ground that

CBF’s motion had not been timely filed and would, “by [its] very
nature

. . .

unduly

parties’ rights.”

delay

the

adjudication

Denial Order 5.

of

the

original

On September 25, 2013, CBF

filed a timely notice of appeal, and we possess jurisdiction
pursuant to 28 U.S.C. § 1291.

See Stringfellow v. Concerned

Neighbors in Action, 480 U.S. 370, 377 (1987) (“[W]hen an order
prevents

a

putative

intervenor

from

becoming

a

party

in

any

respect, the order is subject to immediate review.”); see also
Bridges v. Dep’t of Md. State Police, 441 F.3d 197, 207-09 (4th
Cir.

2006)

(recognizing

settled

“principle

that

denial

of

a

motion to intervene is an appealable final order”). 4

3

The pollutants from Alt’s Hardy County farm discharge into
the navigable waters of the United States. Surface runoff from
the farm finds its way into nearby Mudlick Run, a perennial
stream that feeds into Anderson Run, a tributary of the South
Branch of the Potomac River.
The Potomac, in turn, is a major
tributary of the Chesapeake Bay.
4

The district court entered final judgment on the merits of
Alt’s lawsuit on October 23, 2013. The appeal therefrom to this
Court is being held in abeyance pending resolution of the matter
(Continued)
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II.
A party seeking to intervene under either Federal Rule of
Civil Procedure 24(a) or 24(b) may do so only upon the filing of
a “timely motion.”

CBF contends that the district court erred

in concluding that its motion to intervene failed to satisfy the
threshold

timeliness

requirement.

The

determination

of

timeliness is committed to the sound discretion of the trial
court and will not be disturbed on appeal absent an abuse of
that discretion.
(1973);
Cir.

See NAACP v. New York, 413 U.S. 345, 365-66

Houston Gen. Ins. Co. v. Moore, 193 F.3d 838, 839 (4th

1999).

Indeed,

we

have

emphasized

discretion in this regard is “wide.”

that

a

court’s

See Gould v. Alleco, Inc.,

883 F.2d 281, 286 (4th Cir. 1989).
In

order

to

intervene

in

court

this

in

a

properly

civil

determine

action

Circuit

is

is

whether

sufficiently

obliged

to

assess

a

motion

timely,
three

a

to

trial

factors:

first, how far the underlying suit has progressed; second, the
prejudice any resulting delay might cause the other parties; and
third, why the movant was tardy in filing its motion.
Gould, 883 F.2d at 286.

See

Our review of these factors in this

at bar.
See Alt v. EPA, No. 13-2527 (4th Cir. Feb. 6, 2014),
ECF No. 39.

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counsels

against

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disturbing

the

district

court’s

disposition of CBF’s intervention motion.
On the first factor, we observe that when CBF moved to
intervene,

the

proceedings

relatively advanced stage.

below

had

already

reached

a

Seven other parties had long since

requested and received permission from the district court to
intervene.

Several

months

of

settlement

transpired.

The EPA’s motion to dismiss Alt’s case had been

fully briefed, argued, and denied.

negotiations

had

The case had been stayed

once, and the court’s scheduling order had been extended twice.
Moreover, summary judgment briefing and related proceedings had
commenced and were ongoing.

In such circumstances, the court

was reasonably reluctant to arrest the momentum of the lawsuit
so near to its final resolution.
265

F.3d

195,

202

(4th

Cir.

See Scardelletti v. Debarr,
2001)

(“The

purpose

of

the

[timeliness] requirement is to prevent a tardy intervenor from
derailing a lawsuit within sight of the terminal.”), rev’d on
other grounds, Devlin v. Scardelletti, 536 U.S. 1 (2002).
The second factor — prejudice — also weighs against CBF’s
intervention

request.

CBF

concedes

(as

it

must)

that

its

belated intervention would have caused some delay, and would
have required the plaintiffs to expend “extra effort.”
Appellant

13.

CBF

asserts

that

it

proposed

to

Br. of

allow

the

plaintiffs extra time and enlarged page limits in their written
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submissions,

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thereby

otherwise visited.

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mitigating

the

prejudice

it

might

have

But the district court, having its finger on

the pulse of the proceedings, characterized CBF’s proposal as
“too little, and too late.”

Denial Order 6.

Affording the

court its proper deference, we are in no position to disagree.
Finally,

we

must

evaluate

the

soundness

of

the

espoused by CBF for its tardy intervention motion.

reasons

Belying its

late entry, CBF was not at all unaware of what was transpiring
in the district court.

Instead, CBF candidly acknowledges that

it had closely monitored the proceedings in Alt’s lawsuit and
made a strategic decision not to devote its “limited resources”
to the matter at an earlier stage, believing the court would
grant the EPA’s motion to dismiss.
Stated

plainly,

execution

of

CBF
its

admits

that

litigation

it

Br. of Appellant 14-15.
gambled

strategy.

and

lost

Such

forbearance understandably engenders little sympathy.

in

the

deliberate
See Moten

v. Bricklayers, Masons, & Plasterers, Intern. Union of Am., 543
F.2d

224,

228

(D.C.

Cir.

1976)

(deeming

motion

to

intervene

untimely where decision not to seek earlier intervention was
informed and tactical choice).
unable

to

conclude

that

the

In these circumstances, we are
court

denying CBF’s motion to intervene.

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abused

its

discretion

by

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III.
Pursuant to the foregoing, we are satisfied to affirm the
district court’s Denial Order.
AFFIRMED

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