Pacific Shores Property Owners Association et al v. Federal Aviation Administration et al

Filing 38

ORDER by Judge Hamilton granting 22 Motion to Intervene (pjhlc1, COURT STAFF) (Filed on 11/26/2013)

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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PACIFIC SHORES PROPERTY
OWNERS ASSOCIATION, et al.,
Plaintiffs,

No. C 13-2827 PJH

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For the Northern District of California

United States District Court

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v.

ORDER GRANTING MOTION FOR
LEAVE TO INTERVENE

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FEDERAL AVIATION
ADMINISTRATION, et. al.,

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Defendants.

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_______________________________/

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Before the court is the motion of Maxine Curtis, Michael Headley, Earl McGrew,

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Mimi and Bob Stephens, Northcoast Environmental Center, and Smith River Alliance

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(“applicants”) for leave to intervene as defendants in the above-entitled action. Having read

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the parties’ papers and carefully considered their arguments and the relevant legal

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authority, and good cause appearing, the court hereby GRANTS the motion.

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BACKGROUND

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On June 19, 2013, petitioners/plaintiffs Pacific Shores Property Owners Association

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and William A. Ritter (“plaintiffs”) filed a petition/complaint against respondents/defendants

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Federal Aviation Administration (“FAA”) and Border Coast Regional Airport Authority (“the

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Authority”). The Authority plans to expand Del Norte County Regional Airport (“the

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airport”). To offset the expansion’s impact on the environment, the Authority plans to

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acquire undeveloped properties in the Pacific Shores Subdivision (“the subdivision”) and

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keep the properties in a natural state. Plaintiffs own properties in the subdivision and their

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action relates to the Authority’s plan.

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The “Petition and Complaint” asserts five causes of action – (1) a claim of violation

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of the Uniform Relocation Assistance and Real Property Act, 49 C.F.R. § 24 (“URA”),

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against the FAA and the Authority;1 (2) a claim under 42 U.S.C. § 1983 of violation of the

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Fifth Amendment Due Process Clause and “Civil Rights,” against the Authority; (3) a claim

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for inverse condemnation damages, against the Authority; (4) a claim of violation of the

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California Environmental Quality Act, Cal. Govt. Code § 21000, et seq., against the

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Authority; and (5) a claim of violation of the Constitutional prohibition against private gifts of

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public money, Cal. Const. Art. XVI, § 6, against the Authority. Plaintiffs seek, among other
things, that the court “enjoin any action of the Authority to further acquire private property

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For the Northern District of California

United States District Court

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within the subdivision. . . .” Complaint, ¶ 76.

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On October 10, 2013, the FAA moved to dismiss the sole claim against it. On
November 21, 2013, the court granted the motion to dismiss with leave to amend.

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On October 16, 2013, applicants moved to intervene as defendants, asserting that

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they all own parcels within the subdivision, and all wish to retain their ability to sell those

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parcels to the Authority. Applicants seek intervention as of right, or, in the alternative,

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permissive intervention. The FAA and the Authority filed statements of non-opposition to

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the motion. Plaintiffs, on the other hand, oppose the motion.

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DISCUSSION
A.

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Legal Standard
Federal Rule of Civil Procedure 24 governs intervention. Under Rule 24, there are

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two methods for intervention – intervention as of right, and permissive intervention.

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Intervention is permitted as of right either when a federal statue authorizes intervention, or

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when

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the applicant claims an interest relating to the property or transaction which is
the subject of the action and the applicant is so situated that the disposition of

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It appeared to the court that plaintiffs were attempting to allege a claim under 42
U.S.C. § 4651. At the hearing on the FAA’s motion to dismiss, plaintiffs’ counsel clarified that
the URA claim was being brought under § 4655, not under § 4651.
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the action may as a practical matter impair or impede the applicant's ability to
protect that interest, unless the applicant's interest is adequately represented
by existing parties.

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Fed. R. Civ. P. 24(a)(2).

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Intervention as of right involves a four-part test. League of United Latin American

demonstrate (1) that the application is timely; (2) that the applicant has a "significantly

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protectable interest" relating to the property or transaction involved in the pending lawsuit;

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(3) that disposition of the lawsuit may adversely affect the applicant's interest; and (4) that

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the existing parties do not adequately protect the applicant's interests. Southwest Ctr. for

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Biological Diversity v. Berg, 268 F.3d 810, 817-18 (9th Cir. 2001). While an applicant has

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For the Northern District of California

Citizens v. Wilson, 131 F.3d 1297, 1302 (9th Cir. 1997). Specifically, an applicant must

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United States District Court

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the burden to show that all four elements are met, motions to intervene as of right are

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interpreted broadly in favor of intervention. Prete v. Bradbury, 438 F.3d 949, 954 (9th Cir.

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2006).

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Where an applicant seeks to intervene without alleging new claims, permissive

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intervention requires only that the application is timely and the applicant "have a question of

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law or fact in common" with the underlying action. Fed. R. Civ. P. 24(b); see Freedom from

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Religion Found., Inc. v. Geithner, 644 F.3d 836, 843-44 (9th Cir. 2011).

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B.

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Applicants’ Motion for Leave to Intervene
Applicants seek leave to intervene as of right under Fed. R. Civ. P. 24(a)(2), or,

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alternatively, argue that the court should exercise its discretion to permit intervention under

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Fed. R. Civ. P. 24(b)(1)(B). Because the court finds applicants satisfy the requirements for

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intervention as of right, the court grants the motion on that ground and does not reach the

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question of permissive intervention.

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Applicants satisfy the four-part test for intervention as of right. First, the proposed

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intervention is timely because the action is at an early stage and intervention will not

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prejudice the existing parties. See Nw. Forest Res. Council v. Glickman, 82 F.3d 825, 836-

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37 (9th Cir. 1996). Plaintiffs filed their initial complaint less than six months ago, and the

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existing parties have not yet litigated the merits of the claims. The court did grant the
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FAA’s motion to dismiss on November, 21, 2013, but applicants’ motion for leave to

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intervene predates that order. Notably, plaintiffs fail to argue that applicants’ intervention is

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untimely or would cause prejudice.

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Second, applicants have a significant protectable interest relating to the property

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involved in the lawsuit. This case concerns the Authority’s attempt to acquire properties in

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the subdivision. As landowners in the subdivision, plaintiffs brought their claims against the

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Authority because they are impacted by the Authority’s attempt to acquire properties. No

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less so, however, will the Authority’s attempt impact applicants, who all own property in the

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subdivision and all intend to sell their respective parcels to the Authority. As landowners,
applicants have a significant protectable interest in retaining the ability to sell their

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For the Northern District of California

United States District Court

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properties to whom they see fit.

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Third, disposition of the lawsuit may adversely impact applicants’ interests. Plaintiffs

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seek to “enjoin any action of the Authority to further acquire property within the

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subdivision. . . .” Complaint, ¶ 76. If plaintiffs succeed in acquiring this relief, it will

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adversely impact applicants’ interests in retaining the option to sell their properties to the

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Authority.

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Plaintiffs misunderstand the relationship required between applicants’ interests and

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the lawsuit. Plaintiffs argue that applicants’ interests do not adequately relate to the lawsuit

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because plaintiffs only challenge the actions of the FAA and the Authority, and the laws

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plaintiffs employ in these challenges only apply to governmental entities. However, “[n]o

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part of Rule 24(a)(2)’s prescription engrafts a limitation on intervention of right to parties

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liable to the plaintiffs on the same grounds as the defendants.” Wilderness Soc. v. U.S.

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Forest Service, 630 F.3d 1173, 1178-79 (2011). It is enough that (1) the lawsuit revolves

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around the Authority’s attempt to acquire properties in the subdivision, (2) plaintiffs seek to

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enjoin this attempt, and (3) applicants are subdivision property owners who wish to sell

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their properties to the Authority.

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Fourth, the existing parties do not adequately protect applicants’ interests in

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retaining the option to sell their properties to the Authority. “The burden of showing
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inadequacy of representation is ‘minimal’ and is satisfied if [applicants] can demonstrate

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that representation of [their] interests ‘may be’ inadequate.” Citizens for Balanced Use v.

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Montana Wilderness Ass’n, 647 F.3d 893, 898 (9th Cir. 2011) (quoting Arakaki v.

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Cayetano, 324 F.3d 1078, 1086 (9th Cir. 2003)). Plaintiffs suggest that the court should

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apply a more rigorous standard requiring a “very compelling showing that the government

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will not adequately represent [applicants’] interests.” See Gonzalez v. Arizona, 485 F.3d

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1041, 1052 (9th Cir. 2007) (citation omitted). The court declines to do so, however,

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because this is not a case like Gonzalez where “‘the government is acting on behalf of a

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constituency it represents’” by defending a law of general application. See id. (citation

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For the Northern District of California

United States District Court

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omitted).
Indeed, while the Authority seeks to acquire properties in the subdivision, it only

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does so as a means to the end of offsetting the environmental impacts of the airport

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expansion. It is uncontested that the Authority may seek to acquire alternative properties

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that lie outside the subdivision that will serve the Authority’s purpose just as well as

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properties within the subdivision. In contrast, applicants are interested only in being able to

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sell their properties, and applicants have noted that the Authority is the sole available

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buyer. Given their divergent goals, applicants may well defend the Authority’s attempted

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acquisitions of subdivision properties more vigorously than the Authority will.

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Moreover, plaintiffs do not adequately represent applicants because plaintiffs and

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applicants have divergent interests – the former want to prevent the Authority from

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acquiring properties in the subdivision whereas the latter want to enable it. Accordingly,

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applicants have made at least the required “minimal” showing under the fourth element.

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See Citizens for Balanced Use, 647 F.3d at 898.

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CONCLUSION
For the forgoing reason, the court hereby GRANTS applicants’ motion for leave to

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intervene, conditioned on applicants’ participating in the lawsuit with one voice. In other

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words, the court will permit a single joint brief for any motion practice or a single joint

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presentation at any trial that may be conducted.
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Additionally, plaintiffs’ counsel is advised that he must familiarize himself with the

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Civil Local Rules of this District. Both the opposition to this motion and the opposition to

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the motion to dismiss were filed late, assertedly because plaintiffs’ counsel followed the

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local rules from the Eastern District of California. Any future late filings will not be

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considered by the court.

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IT IS SO ORDERED.

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Dated: November 26, 2013
______________________________
PHYLLIS J. HAMILTON
United States District Judge

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For the Northern District of California

United States District Court

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