Pacific Coast Federation of Fishermen's Associations, et al., v. Glaser et al

Filing 204

ORDER signed by Chief District Judge Kimberly J. Mueller on 10/13/2020 GRANTING 193 Motion to Intervene. Because its motion is granted on this basis, the court does not reach GWD's alternative request to intervene permissively under Rule 24(b). The parties, including GWD, are directed to submit a joint report within twenty-one (21) days addressing the need for additional discovery, if any, and dates to be set in a new pretrial scheduling order. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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PACIFIC COAST FEDERATION OF
FISHERMEN’S ASSOCIATIONS, et al.,
Plaintiffs,

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ORDER
v.

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No. 2:11-cv-02980-KJM-CKD

DONALD R. GLASER, et al.,
Defendants.

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Grassland Water District (GWD) moves to intervene as a defendant in this Clean

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Water Act enforcement action. See Mot. to Intervene (Mot.), ECF No. 193; Reply, ECF No. 200.

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Plaintiffs oppose the motion, ECF No. 199; defendant San Luis & Delta-Mendota Water

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Authority (the Authority) does not, ECF No. 198.1 The court heard the motion by

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videoconference, in light of the novel coronavirus pandemic, on April 24, 2020. Stephan Volker

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appeared for plaintiffs; Ellen Wehr appeared for GWD; Martin McDermott appeared for the

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federal defendants; and Eric Buescher, Gabriel Delgado, and Rebecca Akroyd appeared for the

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Authority. Hr’g Minutes, ECF No. 202. The motion is granted.

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Donald Glaser and the U.S. Bureau of Reclamation (the federal defendants) have filed
neither an opposition nor a statement of nonopposition.
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I.

BACKGROUND
Plaintiffs are a collection of individuals, citizens’ groups and corporations who

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each depend on California’s oceans, rivers and fisheries. First Am. Compl. (FAC), ECF No. 71

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¶¶ 11–16. The U.S. Bureau of Reclamation is a federal agency that, broadly speaking, manages

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water resources. Id. ¶ 18. The Authority serves member agencies, which rely upon water

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exported by the Central Valley Project from the San Francisco Bay Delta. Id. ¶ 19. The

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defendants manage the Grassland Bypass Project, which “collects and discharges polluted

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groundwater from tile drainage systems” and “water that has been used for irrigation purposes.”

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Id. ¶¶ 21–22. GWD is a public agency that provides water to wetlands and wildlife refuges

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within the Grasslands Ecological Area in Merced County, California. Mot. at 7–8.
Plaintiffs allege defendants violated the Clean Water Act, 33 U.S.C. § 1311(a), by

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discharging pollutants into the San Francisco Bay Delta without a National Pollutant Discharge

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Elimination System (NPDES) permit. Compl., ECF No. 2. Their allegations address the San

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Luis Unit of the Grassland Bypass Project, which includes canals such as the San Luis Drain.

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FAC ¶¶ 23–24. According to the complaint, the San Luis Drain “discharge[s] contaminated

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groundwater to Mud Slough and the San Joaquin River” and includes redirected pollutants, which

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would normally have discharged into freshwater channels and wetlands. Id. Defendants argue

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these discharges are exempt from an NDPES permit because they are composed of “discharges

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composed entirely of return flows from irrigated agriculture.” 33 U.S.C. § 1342(l)(1); see also

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Joint Status Report, ECF No. 196, at 5.

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Nearly four years of motion practice followed the filing of plaintiffs’ original

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complaint, including cross-motions for summary judgment. See ECF Nos. 71, 87, 137, 138, 162,

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175. The court’s order on the cross-motions left only one category of claims in the case, which

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the parties stipulated to dismiss to allow an appeal. Stip. of Dismissal, ECF No. 182, at 2–3. The

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Ninth Circuit reversed and remanded. See Pac. Coast Fed’n of Fishermen’s Ass’ns v. Glaser, 945

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F.3d 1076, 1078 (9th Cir. 2019). Among other holdings, the Ninth Circuit determined that

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plaintiffs should have been permitted to pursue a theory of liability this court had stricken,

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namely “that Defendants violated the [Clean Water Act] because the [San Luis] Drain picked up
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seepage from non-irrigated land on its way to the Mud Slough, and because the Drain discharged

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pollutants from seepage and sediment within the Drain.” Id. at 1081. For simplicity, the court

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refers to this theory of liability as the “seepage” theory.

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After the Ninth Circuit issued its opinion, GWD moved before the Circuit for

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leave to file an amicus curiae brief in support of defendants’ motion for a panel rehearing. Ortega

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Decl. Ex. 1, ECF No. 193-3. It explained the Drain conveys water through the GWD but is

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separate from GWD’s own “water delivery channels”; the Drain merely “bypass[es] water”

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through the GWD that “does not meet water quality requirements for application to wetland

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habitat, from the Grassland Drainage Area to Mud Slough.” Ortega Decl., ECF No. 193-3, ¶ 6.

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GWD asked the Circuit for permission to argue that “[n]either the pleadings nor [ plaintiffs’]

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responses to discovery gave any indication that this case was intended to address discharges

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originating from the Grasslands Drainage Area,” which it interpreted the Ninth Circuit’s opinion

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to permit on remand. Id. at 5. GWD took the position the Ninth Circuit’s order effectively

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“expand[ed] the scope of the case,—and potential Clean Water Act liability—well beyond the

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area and activities described in the pleadings, to areas outside of the Grassland Drainage Area that

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include the [GWD] and other wetlands within the Grassland Ecological Area.” Id. In short,

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GWD asserted that its water supplies “became part of the property and transaction that are the

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subject of this case” after the Ninth Circuit’s decision. Id. at 7. It thus asked the Circuit to “limit

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its decision to those discharges that originate in the Grassland Drainage Area.” Id. at 6.

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The Ninth Circuit permitted GWD to file its amicus brief but did not modify its

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opinion as GWD requested. See 945 F.3d at 1079 (Order). It then remanded the case to this

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court, at which point GWD moved to intervene. ECF No. 193.

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II.

LEGAL STANDARD

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When a nonparty wishes to become a party in a lawsuit, that entity may move to

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intervene under Rule 24 of the Federal Rules of Civil Procedure. Rule 24 permits two types of

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intervention: intervention as of right and permissive intervention. An entity moving to intervene

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as of right, as GWD does here, has the burden to show (1) the motion is timely, (2) it has a

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“significant protectable interest in the property or transaction” in question, (3) “the disposition of
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the action may, as a practical matter, impair or impede” the entity in protecting that interest, and

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(4) the existing parties would not adequately represent the entity. Citizens for Balanced Use v.

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Mont. Wilderness Ass’n, 647 F.3d 893, 897 (9th Cir. 2011). These requirements are broadly

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interpreted in favor of intervention. Id.

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III.

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DISCUSSION
A.

Timeliness
Courts consider three factors when deciding whether a motion to intervene is

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timely: “(1) the stage of the proceeding at which an applicant seeks to intervene; (2) the prejudice

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to other parties; and (3) the reason for and length of [any] delay.” League of United Latin Am.

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Citizens v. Wilson, 131 F.3d 1297, 1302 (9th Cir. 1997). Delays are measured from the time

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when a proposed intervenor “should have been aware that [its] interests would not be adequately

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protected by the existing parties.” Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).

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GWD moved to intervene here after many years of hard-fought litigation and

Stage of Proceedings

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discovery, after even an appeal and remand. The case could now be considered to have reached a

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stage late in the game. But GWD argues the Ninth Circuit’s opinion changed the circumstances of

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this action. Changes in circumstances weigh in favor of a motion to intervene. See, e.g., United

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States v. State of Oregon, 745 F.2d 550, 552 (9th Cir. 1984) (collecting authority). When “a

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change of circumstances occurs, and that change is the ‘major reason’ for the motion to intervene,

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the stage of proceedings factor should be analyzed by reference to the change in circumstances,

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and not the commencement of the litigation.” Smith v. Los Angeles Unified Sch. Dist., 830 F.3d

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843, 854 (9th Cir. 2016).

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This court agrees the circumstances here have changed, as relevant to GWD’s

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motion. Before the Ninth Circuit’s opinion, the existing defendants had successfully argued the

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seepage theory lacked support in the pleadings and record. See Order, ECF No. 181. The motion

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practice here thus focused on whether discharges from agricultural land exempted the Grassland

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Bypass Project from an NDPES permit. See Order on Reconsideration, ECF No. 175, at 2–4.

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The Ninth Circuit issued its opinion and clarified the scope of plaintiff’s claims to encompass
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non-agricultural land outside of the drainage area of the Grassland Bypass Project, land that

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includes the GWD; this land is the “non-irrigated land” cited in the Ninth Circuit’s opinion. See

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945 F.3d at 1087. In the opinion, notably, the Ninth Circuit “agree[d] with Defendants that

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Plaintiffs’ complaint did not specifically allege their seepage and sediment theories of liability,”

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id., but found defendants were given fair notice of these theories because plaintiffs’ complaint

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alleged “that the Drain discharged ‘polluted groundwater … originating from parcels where no

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farming occurs because, for instance, these parcels have been fallowed or retired from agricultural

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use.’” Id. (quoting FAC ¶ 41). GWD does not control land within the drainage area and did not

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sign the agreement covering the costs “related to the Grassland Bypass Project, including the cost

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of defending this litigation.” Mot. at 14. In short, “the litigation is entering a new stage,” State of

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Oregon, 745 F.2d 550, 552 (9th Cir. 1984), and GWD did not delay once the Ninth Circuit issued

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its opinion and the case was remanded, triggering that new stage.

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2.

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GWD’s actions in this case are similar to those of the successful intervenor in

Reason for and Length of Delay

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California v. Health and Human Services, 330 F.R.D. 248 (N.D. Cal. 2019). Oregon was not a

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party in that case originally, in which the district court had issued a nationwide injunction; as a

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result, Oregon’s “asserted interests were initially protected by the existing parties.” Id. at 253.

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But the defendants appealed, and the Ninth Circuit restricted the injunction to the plaintiff states

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only. Id. Oregon then moved to intervene, and the court agreed under the circumstances it had

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not delayed. Id. So too here: until the Ninth Circuit’s decision, GWD similarly understood this

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dispute did not apply to land under its control; now it does.

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Plaintiffs argue GWD could and should have attempted to intervene much earlier

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because it knew that seepage from its land flows into the San Luis Drain. See Opp’n at 11–13.

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That argument relies on an incorrect test for timeliness. When GWD became aware of the alleged

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environmental problem is irrelevant; the relevant question is when GWD realized its interests

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here were not protected. See Smith, 194 F.3d at 1052. Nor can plaintiffs succeed by arguing that

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GWD had notice from plaintiffs’ complaint that a seepage theory was at issue in light of what the

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Ninth Circuit has now determined. The Circuit construed the complaint and concluded only that
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the existing defendants had notice of seepage claims, as well as access to discovery documents

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and testimony, records that were not necessarily disclosed on the docket of this action. See 945

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F.3d at 1087. The Circuit did not find that third parties should also have been on notice, and this

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court cannot reach that conclusion now. The court had excluded the claims GWD now contends

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will implicate its interests. Holding that GWD should have intervened sooner would effectively

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require it, and others similarly situated, to constantly troll the dockets of every case potentially

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relevant to its interests and seek early intervention in order to preserve rights in the event a future

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court decision may affect those rights.

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3.

Prejudice

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Prejudice is the final timeliness factor to consider. “[T]he only ‘prejudice’ that is

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relevant under this factor is that which flows from a prospective intervenor’s failure to intervene

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after he knew, or reasonably should have known, that his interests were not being adequately

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represented—and not from the fact that including another party in the case might make resolution

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more ‘difficult[].’” Smith, 830 F.3d at 857 (alterations in original) (quoting State of Oregon, 745

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F.3d at 552–53).

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Here, the plaintiffs will not suffer undue prejudice if GWD is permitted to

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intervene. It may be that GWD’s participation would make ultimate resolution more difficult or

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costly to obtain here, but if so, that would be so even if GWD has intervened years ago. There is

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no reason to believe that allowing GWD to become a defendant now will materially alter the

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course of future motion practice in what is likely to be a continuing hotly litigated case, or

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threaten the success of protracted negotiations or a settlement if the parties head in that direction.

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Cf. Cty. of Orange v. Air Cal., 799 F.2d 535, 538 (9th Cir. 1986). GWD’s delay is thus not the

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cause of any prejudice, even if its presence in the case means more heavy lifting for plaintiffs.

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That is not a reason to keep it out of the case. See Smith, 830 F.3d at 857–58 (overturning a

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district court’s finding of prejudice because it was “untethered to any prejudice which was caused

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by Appellants’ delay” and “would be true regardless of when the intervention occurred.”).

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Even if GWD’s addition does make resolution more “difficult,” that also is not
dispositive. When GWD sought to intervene, it did not “seek to alter any of the Court’s current
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deadlines (briefing or otherwise).” Mot. at 10–11. It is likely now that scheduling changes are

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necessary, but that was a result of factors beyond GWD’s control, a global pandemic chief among

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them, in addition to this court’s heavy caseload. While plaintiffs also suggest GWD’s

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intervention is a tactic designed to overwhelm plaintiffs’ lawyer’s “tiny, pro bono firm,” Opp’n at

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20, GWD itself is no behemoth. It is a public agency represented by one in-house counsel. Reply

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at 13. In any event, the threat of a resourceful adversary also is the same danger now that it

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would have been much earlier in the litigation.

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In sum, the court finds “no basis in the record for holding that the intervention
would prejudice the existing parties because of the passage of time.” State of Oregon, 745 F.3d at
553. GWD’s motion is timely under the circumstances.
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Significantly Protectable Interest and Practical Impairment of that Interest

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An interest is a significant protectable interest if (1) it is protectable under some

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law and (2) it is related to the claims at issue. Citizens for Balanced Use, 647 F.3d at 897. The

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interest need not be a specific legal or equitable interest. Id. GWD must demonstrate the

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disposition of the action in its absence would impair its interests in a practical sense. Fed. R. Civ.

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P. 24(a)(2).

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Here, California Water Code sections 35407 and 35408 authorize GWD to

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intervene in any legal action that involves or affects water or water rights within the water

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district’s boundaries. Cal. Water Code § 35407 (“A district may commence and maintain any

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actions and proceedings to carry out its purposes or protect its interests and may defend any

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action or proceeding brought against it.”); id. § 35408 (“A district may commence, maintain,

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intervene in, compromise and assume the costs of any action or proceeding involving or affecting

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the ownership or use of waters or water rights within the district used or useful for any purpose of

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the district or a benefit to any land.”). Not only does the California Water Code protect GWD’s

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interest; that interest also is implicated by plaintiffs’ seepage claims. Plaintiffs argue that seepage

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into the San Luis Drain from non-agricultural lands adjacent to the San Luis Drain can be the

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basis for liability, Joint Status Report at 7; these lands, including those outside the drainage area,

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lie within the Grassland Water District, Ortega Decl. ¶ 8. GWD reasonably appears to have an
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interest in seeking to persuade the court that seepage from its land falls under exceptions for “the

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Clean Water Act’s express and unqualified exclusion of agricultural stormwater and return flows

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in the Clean Water Act’s definition of a ‘point source.’” Ortega Decl. Ex. 1 at 23. Plaintiffs do

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not contend otherwise.

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When a litigant has a significant protectable interest, it is easy to see why litigation

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in its absence may impair its interests, as is the case here. See California ex rel. Lockyer v.

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United States, 450 F.3d 436, 442 (9th Cir. 2006). If this action is litigated without GWD, GWD

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would not be entitled to seek discovery about its potential liability, it could not defend itself in

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dispositive motion practice and at trial, and it might find itself bound by an order or judgment in

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affecting waters originating on its land. See Barajas Decl. ECF No. 193-4, ¶ 9. In particular,

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GWD might be required to comply with NDPES permitting rules in the future. Mot. at 5, 8;

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Reply at 8.

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In sum, GWD has shown a significantly protectable interest related to this Clean

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Water Act enforcement action and has also demonstrated that interest could be impaired in its

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absence.

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C.

Inadequacy of Representation
The “burden of showing inadequacy of representation is ‘minimal’ and is

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satisfied if the applicant can demonstrate that representation of its interests ‘may be’ inadequate.”

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Citizens for Balanced Use, 647 F.3d at 898 (citing Arakaki v. Cayetano, 324 F. 3d 1078, 1086

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(9th Cir. 2003)); accord Trbovich v. United Mine Workers of Am., 404 U.S. 528, 538 n.10 (1972).

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The court examines “(1) whether the interest of a present party is such that it will undoubtedly

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make all of a proposed intervenor’s arguments; (2) whether the present party is capable and

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willing to make such arguments; and (3) whether a proposed intervenor would offer any

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necessary elements to the proceeding that other parties would neglect. Citizens for Balanced Use,

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647 F.3d at 898 (quoting Arakaki, 324 F.3d at 1086).

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GWD’s interests here diverge from those of the existing defendants. The federal

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defendants are clearly not adequate representatives. The Bureau built and manages the San Luis

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Drain, whereas GWD aims to provide water to and support the wetlands around the Drain. There
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is no assurance the federal government will make all of GWD’s arguments or that its connection

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to the Drain makes it capable of advancing arguments about wetlands. Mot. at 14.

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The Authority’s interests present a more challenging question, but only at first

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glance: GWD is in fact a member of the Authority. But like the federal defendants, the Authority

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is a named defendant because it “operates the [Grassland Bypass] Project.” FAC ¶ 19. GWD’s

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membership in the Authority does not relate to the Grassland Bypass Project. GWD “is neither

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an operator nor a user of the Project facilities”; GWD does not pay the Authority for the

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agricultural drainage services of the Project; and GWD is not a signatory to the Grassland Basin

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Drainage Management Activity Agreement. Mot. at 14; Barajas Decl. ¶¶ 6-8; Reply at 11. Like

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the federal defendants, the Authority is unlikely to make the arguments GWD would make or

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make those arguments capably so as to vindicate GWD’s interests.

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Plaintiffs do not confront these differences directly, but rather focus on the

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Grassland Basin Drainage Management Activity Agreement, claiming it is irrelevant that GWD is

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not a signatory. They argue the Authority represents all of GWD’s members, not just those who

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signed the agreement, and contend “it would not benefit the Authority . . . to undermine the

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interests of one of its members to protect those of another.” Opp’n at 19. These arguments do

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not withstand scrutiny. Although the Authority might not benefit from any undermining of

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GWD’s interests, the distinction between their interests remains, at least with respect to operation

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of the San Luis Drain. Agricultural members of the Authority, for example, may very well make

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arguments about seepage liability that conflict directly with GWD’s wetlands conservation goals.

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Whereas plaintiffs’ claims of discharges from highways, residences and sediment affect the

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Authority’s farming and drainage members, the seepage theory implicates GWD as a wetlands

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water manager.

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The court also is not persuaded that GWD’s motion should be denied, as plaintiffs

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argue, because GWD does not “provide any evidence that the Authority lacks . . . expertise”

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about wetland management. Opp’n at 20. But the Executive Director of the Authority, for

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example, does aver that “Clean Water Act regulation of wetland water deliveries or alleged

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discharges is not an issue that the SLDMWA has historically addressed.” Barajas Decl. ¶ 9. Mr.
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Barajas also avers there is not “an agreement in place to cover the SLDMWA’s costs of doing

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so.” Id. The Grassland Basin Drainage Management Activity Agreement is itself evidence:

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although GWD is a member of the Authority, it was not a signatory to the Agreement.

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GWD has shown that neither the federal defendants nor the Authority would

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adequately represent its interests in this litigation.

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IV.

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CONCLUSION
GWD’s motion to intervene as of right is GRANTED. Because its motion is

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granted on this basis, the court does not reach GWD’s alternative request to intervene

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permissively under Rule 24(b).

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The parties, including GWD, are directed to submit a joint report within twenty-

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one (21) days addressing the need for additional discovery, if any, and dates to be set in a new

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pretrial scheduling order.

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This order resolves ECF No. 193.

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IT IS SO ORDERED.

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DATED: October 13, 2020.

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