Center for Biological Diversity et al v. U.S. Army Corps of Engineers et al

Filing 33

ORDER granting 13 --motion to intervene. Mosaic must respond to the complaint no later than May 22, 2017. Signed by Judge Steven D. Merryday on 3/31/2017. (SKB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CENTER FOR
BIOLOGICAL DIVERSITY, et al.,
Plaintiff,
v.

CASE NO. 8:17-cv-618-T-23MAP

U.S. ARMY CORPS
OF ENGINEERS, et al.,
Defendants.
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ORDER
Several organizations sue (Doc. 1) the Army Corps of Engineers, the
Department of the Interior, and the Fish and Wildlife Service and allege that the
Army Corps of Engineers’s issuance to Mosaic Fertilizer of a Clean Water Act
permit violates the Clean Water Act, the National Environmental Policy Act, the
Endangered Species Act, and the Administrative Procedure Act. Under the permit,
Mosaic may extract phosphate from several thousand acres in Hardee County but
must mitigate the environmental effect of the mining. Mosaic moves (Doc. 13)
unopposed to intervene under Rule 24(a), Federal Rules of Civil Procedure.
DISCUSSION
To intervene under Rule 24(a), a prospective intervenor must move timely to
intervene. Also, the movant must claim an interest “relating to the property or
transaction that is the subject of the action.” Additionally, the movant must show

that the disposition of the action might “as a practical matter impair or impede the
movant’s ability to protect its interest.” Finally, the movant must show that the
parties inadequately represent the movant’s interest. Davis v. Butts, 290 F.3d 1297,
1300 (11th Cir. 2002) (quoting Rule 24(a)).
First, Mosaic moved timely to intervene. The plaintiffs sued on March 15,
and Mosaic moved two days later to intervene.
Second, Mosaic’s interest “relating” to the Clean Water Act permit warrants
intervention. Mosaic’s interest, that is, the permit, directly and immediately
“relat[es]” to the plaintiff’s claims, which undertake to invalidate the permit. See
Sierra Club, Inc. v. E.P.A., 358 F.3d 516, 518 (7th Cir. 2004) (Easterbrook, J.) (granting
a permit holder’s motion to intervene in an action that sought invalidation of the
permit and explaining that “[p]ersons whose legal interests are at stake are
appropriate intervenors”). Invalidating the permit will delay or halt Mosaic’s plan to
mine phosphate on land that Mosaic owns. See Diaz v. Southern Drilling Corp.,
427 F.2d 1118, 1124 (5th Cir. 1970) (“Interests in property are the most elementary
type of right that Rule 24(a) is designed to protect.”) (citations omitted).
Third, the disposition of this action might — as a practical matter — impede
Mosaic’s ability to protect the permit. The “potential stare decisis effect” of an action
supplies the “practical disadvantage which warrants intervention as of right.” Chiles
v. Thornburgh, 865 F.2d 1197, 1214 (11th Cir. 1989). As Mosaic correctly observes,
“[t]his litigation creates a risk of unfavorable precedent for Mosaic.” (Doc. 13 at 20)
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Mosaic regularly applies for permits, and a decision in the plaintiffs’ favor might
adversely affect Mosaic’s interest in mining and processing phosphate to
manufacture phosphatic fertilizers and associated products.
Fourth, the parties inadequately represent Mosaic’s interest. The plaintiffs,
which allege that “[i]ndustrial phosphate[-]mining practices squander” Florida’s
“rich natural heritage” by “degrading and destroying huge swaths of life-giving
watersheds” (Doc. 1 at 2), directly oppose Mosaic’s interest. And the governmental
defendants’ interest in resource management differs from Mosaic’s interest in mining
and manufacturing phosphatic products for agriculture and industry. Georgia v. U.S.
Army Corps of Engineers, 302 F.3d 1242, 1259 (11th Cir. 2002) (“[A] federal defendant
with a primary interest in the management of a resource [lacks] interests identical to
those of an entity with economic interests in the use of that resource.”) (citing Sierra
Club v. Espy, 18 F.3d 1202 (5th Cir. 1994) (Smith, J.) (“The government must
represent the broad public interest, not just the economic concerns of the timber
industry.”)).
Also, Rule 24© requires a prospective intervenor to submit a “pleading that
sets out the claim or defense for which intervention is sought.” Mosaic fails to
submit a pleading. But Piambino v. Bailey, 757 F.2d 1112, 1121–22 (11th Cir. 1985),
holds that a prospective intervenor need not submit a pleading if the parties “kn[o]w
the nature of ” the prospective intervenor’s claim or defense. 757 F.2d at 1121.
Because Mosaic’s motion adequately informs the parties about Mosaic’s “position on
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the subject matter litigation” (Doc. 13 at 5), Mosaic need not submit a pleading in
conjunction with the motion to intervene.
CONCLUSION
Mosaic moves timely to intervene, and intervention permits Mosaic to protect
its economic interest, which the parties inadequately represent. The unopposed
motion (Doc. 13) to intervene under Rule 24(a) is GRANTED. No later than
MAY 22, 2017, Mosaic must respond to the complaint.
ORDERED in Tampa, Florida, on March 31, 2017.

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