Black Warrior Riverkeeper, Inc. v. Alabama Department of Transportation et al

Filing 107

ORDER that CRT's motion to intervene 91 is DENIED. Signed by Chief Judge William Keith Watkins on 3/25/2013. (jg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
BLACK WARRIOR RIVERKEEPER, )
INC.,
)
)
Plaintiff,
)
)
v.
)
)
ALABAMA DEPARTMENT OF
)
TRANSPORTATION, et al.,
)
)
Defendants.
)

CASE NO. 2:11-CV-267-WKW
[WO]

ORDER
Before the court is the motion to intervene filed by the Coalition for Regional
Transportation (“CRT”) (Doc. # 91), which has been fully briefed (Docs. # 92, 94, 95,
96, 100). For the reasons that follow, the motion is due to be denied.
I. FACTUAL AND PROCEDURAL BACKGROUND
Jobs and revenue are a problem in the metropolitan area of Birmingham,
Alabama – and the problem is not one of excess. CRT (an organization that purports
to represent governments and businesses in the area) has studied the problem and
advocates a solution: A new interstate connector north of town – the Northern
Beltline.
According to CRT, construction and completion of the Northern Beltline would
create jobs (in the tens of thousands) and increase tax revenues (in the tens of

millions). The total economic impact of the Northern Beltline, CRT claims, would be
billions of dollars. If that is not a solution to the area’s problem with jobs and
revenue, it seems a step in the right direction.
But litigation threatens the completion of the Northern Beltline. Plaintiff Black
Warrior Riverkeeper, Inc., filed this lawsuit in April 2011, asking the court to enjoin
construction until Defendants (all agencies and individuals tasked with building the
Northern Beltline) took a “hard look” at the project’s environmental effects. In
addition to the environmental studies undisputedly performed in 1997 and reevaluated
in 2006, Riverkeeper argued federal law required yet another reevaluation before
construction could proceed.
So Defendants conducted another reevaluation. Approved on March 29, 2012,
that reevaluation (the “2012 reevaluation”) changed the contours of this case.
Although Riverkeeper maintains that Defendants have not adequately considered the
Northern Beltline’s environmental impact, it now challenges the 2012 reevaluation,
not the one conducted in 2006.
From its inception, this lawsuit has pitched Riverkeeper’s defense of the local
environment against CRT’s promotion of the local economy. But only now does CRT
try to get involved directly. On December 7, 2012, CRT filed a motion to intervene

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as a defendant (Doc. # 91), which is now before the court. Only Riverkeeper opposes
the motion. (Doc. # 95.)
II. DISCUSSION
As the structure of Rule 24 indicates, timeliness is a threshold consideration on
a motion to intervene, whether permissively or of right.1 As Riverkeeper points out,
CRT has known of its interest in this lawsuit since April 2011, but it made no attempt
to intervene until December 2012, a delay of over a year and a half. CRT provides
only a Monday-morning explanation for the delay: Because CRT predicted from the
start that the 2012 reevaluation would be approved before this lawsuit was resolved,
it saw no need to intervene before that time. Even after the 2012 reevaluation was
approved, CRT inexplicably waited eight months before moving to intervene, leaving
its interests unprotected. By all appearances, CRT’s motion is untimely.
Timeliness is a flexible inquiry, meant to “regulate intervention in the interest
of justice.” Georgia v. U.S. Army Corps of Eng’rs, 302 F.3d 1242, 1259 (11th Cir.
2002). If CRT’s motion were otherwise due to be granted, justice might require the
court to overlook tardiness. But as the following discussion will show, CRT’s motion
would fail even if it were timely filed.
1

See NAACP v. New York, 413 U.S. 345, 365 (1973) (“Whether intervention be claimed
of right or as permissive, it is at once apparent, from the initial words of both Rule 24(a) and
Rule 24(b), that the application must be ‘timely.’ If it is untimely, intervention must be
denied.”); Fed. R. Civ. P. 24(a), 24(b)(1) (court allows intervention “[o]n timely motion”).
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A.

CRT lacks a sufficient interest in the subject matter of this litigation to
intervene of right.
CRT is not entitled to intervene of right without establishing that (1) its

application is timely, (2) it has an interest relating to the subject matter of this action,
(3) disposition of this action might practically impede or impair its ability to protect
that interest, and (4) its interest is represented inadequately by the existing parties to
the suit. Fox v. Tyson Foods, Inc., 519 F.3d 1298, 1302–03 (11th Cir. 2008).
Because CRT fails to establish the second prerequisite, the inquiry starts and ends
there.2
CRT cannot intervene of right without first identifying a direct, substantial, and
legally protectable interest in the subject matter of this suit. Mt. Hawley Ins. Co. v.
Sandy Lake Props., Inc., 425 F.3d 1308, 1311 (11th Cir. 2005). To that end, CRT
argues it has “substantial interests in realizing the enormous economic and social
benefits that will result from the construction and completion of the Northern
Beltline.” (Doc. # 92, at 12.) Those interests range from increased tax revenues to
decreased travel time. CRT also claims an interest in the federal funding allocated for
2

Compliance with all four factors is suspect, however. As discussed above, timeliness is
questionable. Further, because CRT lacks a protectable interest, this action cannot impair CRT’s
ability to protect one. Finally, there is no evidence to suggest the existing Defendants lack
resources or ability to carry the fight, so CRT cannot rebut the presumption of adequate
representation that arises when an existing party seeks the same objective as a proposed
intervenor. See Stone v. First Union Corp., 371 F.3d 1305, 1311 (11th Cir. 2004).
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the project, though it does not suggest any of its stakeholders will receive any of those
funds directly.
But those interests do not weigh in favor of intervention unless they are legally
protectable. In the Eleventh Circuit, “a legally protectable interest is something more
than an economic interest.” Mt. Hawley, 425 F.3d at 1311 (quotations omitted).
Instead, an applicant must identify an interest in the subject matter of the litigation that
“the substantive law recognizes as belonging to or being owned by the applicant.” Id.
(quotations omitted).
None of the interests CRT asserts meets that standard. The closest CRT comes
is its interest in the federal funds allocated for the Northern Beltline, but even there
CRT points to no substantive law suggesting it “own[s]” that funding, or that any of
the project’s anticipated benefits “belong[ ] to” CRT. Id. Undoubtedly, CRT has
good reasons to support the Northern Beltline. But it lacks a legally protectable
interest in the subject matter of this action. Accordingly, CRT is not entitled to
intervene of right.
B.

Permissive intervention is not warranted.
Permissive intervention may be allowed on timely motion if an applicant has

a “claim or defense that shares with the main action a common question of law or
fact.” Fed. R. Civ. P. 24(b). The court has the discretion to deny permissive
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intervention even if both of those requirements are met. Chiles v. Thornburgh, 865
F.2d 1197, 1213 (11th Cir. 1989). “In exercising its discretion, the court must
consider whether the intervention will unduly delay or prejudice the adjudication of
the original parties’ rights.” Fed. R. Civ. P. 24(b)(3).
In its motion, CRT dutifully recites that it “shares certain defenses set forth by
Defendants in their answers to the Second Amended Complaint.” (Doc. # 92, at 17.)
That is an understatement – all of the defenses CRT lists in its proposed answer are
already asserted by an existing Defendant. CRT also seeks to achieve the same goal
as the existing Defendants: to “demonstrate that Defendants complied with [the
National Environmental Policy Act].” (Doc. # 92, at 17.) And although CRT argues
it stands in a unique position to help settle factual disputes that might arise concerning
some aspects of the administrative record, it makes no effort to explain how it is better
suited for that task than the existing Defendants. In short, it appears CRT’s
involvement in this action would be redundant.
Such redundancy would needlessly expand this litigation. As the Eleventh
Circuit has recognized, “the introduction of additional parties inevitably delays
proceedings.” Athens Lumber Co. v. Fed. Election Comm'n, 690 F.2d 1364, 1367
(11th Cir. 1982). Further, CRT’s involvement would introduce collateral issues that
would only serve to complicate matters. (For instance, it is unclear whether CRT
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actually represents the governments and businesses it claims as “stakeholders.”)
Because CRT’s involvement as a party would unduly delay the resolution of this case,
its motion to intervene is due to be denied.
C.

Amicus Curiae
Although CRT is not entitled to intervene as a party, this case presents an

“classic amicus curiae situation.” Piedmont Heights Civic Club, Inc. v. Moreland, 83
F.R.D. 153, 159 (D.C. Ga. 1979) (perceiving a “classic amicus curiae situation” when
potential intervenors “ha[d] a genuine concern over the outcome of the litigation, yet
they st[ood] at such a distance to it that their participation as intervenors might [have]
significantly complicate[d] the proceedings”). Riverkeeper recognizes as much in its
brief: “CRT could . . . file an amicus curiae brief should there be some specific legal
argument that it wishes to make.” (Doc. # 95, at 14.) Accordingly, CRT may move
for leave to participate as an amicus curiae if it wishes to participate in any stage of
this litigation.
III. CONCLUSION
It is therefore ORDERED that CRT’s motion to intervene (Doc. # 91) is
DENIED.
DONE this 25th day of March, 2013.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
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