USA, et al v. CO Organic Chem Co, et al

Filing 66

ORDER Granting 60 the Unopposed Motion to Intervene By Thomas Z. Mars, Denver Rock Island Railroad, and Union Pacific Railroad Company, by Judge Wiley Y. Daniel on 10/30/2015.(evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No.

98-cv-1600-WYD

UNITED STATES OF AMERICA AND
STATE OF COLORADO
Plaintiffs,
v.
COLORADO ORGANIC CHEMICAL COMPANY, INC.;
RONALD L. SEIGNEUR AS TRUSTEE FOR THE PHILLIP C. MOZER TRUST;
COLORADO & EASTERN RAILROAD COMPANY;
GASAMAT OIL CORPORATION OF COLORADO;
BURLINGTON NORTHERN SANTA FE RAILWAY;
BFI WASTE SYSTEMS OF NORTH AMERICA, INC.;
ROBERT S. CALVERT;
SHELL OIL COMPANY; and
L-C CORPORATION,
Defendants,
v.
NDSC INDUSTRIAL PARK, LLC,
Intervenor
v.
THOMAS Z. MARS;
DENVER ROCK ISLAND RAILROAD; and
UNION PACIFIC RAILROAD COMPANY,
Intervenors.
_____________________________________________________________________
ORDER
_____________________________________________________________________

I.

Introduction and Background
This matter is before the Court on the Unopposed Motion to Intervene By Thomas

Z. Mars, Denver Rock Island Railroad, and Union Pacific Railroad Company (ECF No.
60), filed on October 13, 2015. Intervenors Thomas Z. Mars (“Mars”), Denver Rock
Island Railroad (“DRIR”), and Union Pacific Railroad (“UPR”) (collectively the “Railroad
Intervenors”) state that they each have an interest in this action: Mars seeks to protect
his fee title to portions of a railroad right of way; DRIR seeks to protect its easement rights
and its rights to operate freight rail service on the railroad right of way owned by Mars and
UPR; and UPR seeks to protect its fee title to a portion of the railroad right of way
conveyed to Mars, and to protect its right to operate freight rail service on the right of way.
This matter originates out of a Partial Consent Decree that was entered by this
Court on September 9, 1999, between the Plaintiffs and numerous parties setting forth
terms and conditions under which the Environmental Protection Agency (“EPA”) would
conduct environmental remediation on property near the intersection of 52nd and Dahlia
Street in Adams County, Colorado (the “Dahlia Property”). In the consent decree,
Defendant Colorado & Eastern Railroad Company (“CERC”) authorized the EPA to sell its
property through auction and the proceeds from the sale would be used to cover the
remediation costs. The consent decree also set forth the way in which parcels of the land
could be sold, and it required the United States to approve any conveyance.
On August 19, 2015, this Court granted Intervenor NDSC Industrial Park LLC’s
(“NDSC”) motion to intervene in this matter. NDSC sought to intervene based on an
alleged unauthorized conveyance of its property under the consent decree, and NDSC
subsequently filed a motion asking the Court to invalidate and void a deed from 2001
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between CERC and Mars. That motion is still pending. The Railroad Intervenors now
seek to intervene in this action to protect the title conveyed to and through Mars by the
2001 deed between CERC and Mars, and to protect the rights and obligations associated
with their respective railroad rights of way. The Railroad Intervenors move to intervene
in this case as a matter of right.
II.

Analysis
Intervention as a Matter of Right
Fed. R. Civ. P. 24(a)(2) governs the intervention of right and provides that the

Court must permit anyone to intervene who, on timely motion, meets the requirements of
the Rule:
[W]hen 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 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.
1. Timeliness
“The timeliness of a motion to intervene is assessed ‘in light of all the
circumstances, including the length of time since the applicant knew of his interest in the
case, prejudice to the existing parties, prejudice to the applicant, and the existence of any
unusual circumstances.’” Utah Ass'n of Counties v. Clinton, 255 F.3d 1246, 1250 (10th
Cir. 2001) (citing Sanguine, Ltd. v. United States Dep’t of Interior, 736 F.2d 1416, 1418
(10th Cir. 1984)). The Railroad Intervenors learned of the Court’s order authorizing
NDSC to intervene on August 26, 2015, when a copy of the order was provided by
counsel for NDSC to the Railroad Intervenors. The Railroad Intervenors were made
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aware of NDSC’s Consent Decree Order Motion when they received a copy on
September 10, 2015. The Railroad Intervenors’ motion is timely and allowing their
intervention will not prejudice any party or disrupt any proceedings.
2. Interest Relating to the Subject of the Action
In the Tenth Circuit, “the interest [to intervene as right] must be direct, substantial,
and legally protectable.” Utah Ass'n of Counties, 255 F.3d at 1251. This “inquiry is highly
fact-specific, and . . . the interest test is primarily a practical guide to disposing of lawsuits
by involving as many apparently concerned persons as is compatible with efficiency and
due process.” Id. at 1251-52 (internal quotation marks omitted). “[P]ractical judgment
must be applied in determining whether the strength of the interest and the potential risk
of injury to that interest justify intervention.” San Juan Cnty. Utah, 503 F.3d at 1199. “The
interest of the intervenor is not measured by the particular issue before the court but is
instead measured by whether the interest the intervenor claims is related to the property
that is the subject of the action.” Utah Ass'n of Counties, 255 F.3d at 1252. “At minimum,
[t]he applicant must have an interest that could be adversely affected by the litigation.”
United States v. Albert Inv. Co., 585 F.3d 1386, 1392 (10th Cir. 2009) (internal quotation
marks omitted). Mars and UPR both claim ownership to the fee title of separate portions
of the railroad right of way under the 2001 deed between CERC and Mars. Intervenor
NDSC seeks to have the Court invalidate and void that deed. DRIR and UPR both claim
a right to continued use of the railroad right of way to provide rail service under the
Interstate Commerce Commission (“ICC”) and the Surface Transportation Board (“STB”).
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The Railroad Intervenors’ interests are related to the subject of this action.
3. Impairment of Interest
Rule 24(a)(2) requires intervenors to demonstrate that the disposition of the action
may, as a practical matter, impair or impede their ability to protect their interest. To
satisfy this element, “‘a would-be intervenor must show only that impairment of its
substantial legal interest is possible if intervention is denied. This burden is minimal.’”
Utah Ass'n of Counties, 255 F.3d at 1253, citing Grutter v. Bollinger, 188 F.3d 394, 399
(6th Cir.1999). The Railroad Intervenors argue that NDSC’s request to have the Court
invalidate the 2001 deed between CERC and Mars would destroy the rights in the right of
way and could result in prohibit the use of the right of way for railroad purposes. An
impairment of the Railroad Intervenors’ legal interests is possible if intervention is denied.
4. Inadequate Representation
Under Rule 24(a)(2), parties are entitled to intervene as of right unless their
interests are adequately represented by existing parties. “Although an applicant for
intervention as of right bears the burden of showing inadequate representation, that
burden is the ‘minimal’ one of showing that representation ‘may’ be inadequate.” Utah
Ass'n of Counties, 255 F.3d at 1254, citing Sanguine, 736 F.2d at 1419. “The possibility
that the interests of the applicant and the parties may diverge ‘need not be great’ in order
to satisfy this minimal burden. Utah Ass'n of Counties, 255 F.3d at 1254, citing Natural
Res. Def. Council v. United States Nuclear Reg. Comm'n, 578 F.2d 1341, 1346 (10th
Cir.1978). The Railroad Intervenors note that while CERC has objected to NDSC’s
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consent decree motion and its motive is to prove that it has not violated the consent
decree of 1999, CERC does not have any real property interest in this matter. The
Railroad Intervenors argue that they, on the other hand, seek to protect their property
rights and the use of the railroad right of way, and that Mars and UPR seek to protect a fee
interest in the property. The Railroad Intervenors’ interests are not adequately
represented by the existing parties.
III.

Conclusion
Based on the foregoing, I find that each factor under Fed. R. Civ. P. 24(a)(2) has

been satisfied and that the Railroad Intervenors are entitled to intervene in this case as a
matter of right. Accordingly, it is
ORDERED that the Unopposed Motion to Intervene By Thomas Z. Mars, Denver
Rock Island Railroad, and Union Pacific Railroad Company (ECF No. 60) is GRANTED.
Dated: October 30, 2015

BY THE COURT:

s/ Wiley Y. Daniel
WILEY Y. DANIEL,
SENIOR UNITED STATES DISTRICT JUDGE

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