Georgia River Network et al v. U.S. Army Corps of Engineers et al
Filing
50
ORDER granting 30 Motion to Intervene. Signed by Magistrate Judge G. R. Smith on 08/01/2011. (lmm)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
GEORGIA RIVER NETWORK and
AMERICAN RIVERS,
Plaintiffs,
v.
Case No. 4:10-cv-00267
U.S. ARMY CORPS OF
ENGINEERS; LT. GENERAL
ROBERT L. VAN ANTWERP, U.S.
Army Corps of Engineers;
COLONEL JEFFREY M. HALL,
U.S. Army Corps of Engineers,
Savannah District; RUSSELL L.
KAISER, U.S. Army Corps of
Engineers, Savannah District,
Defendants,
and
GRADY COUNTY BOARD OF
COMMISSIONERS,
Defendant-Intervenor.
ORDER
Pursuant to Fed. R. Civ. P. 24(a)(2), Leon County, Florida moves to
intervene in this environmental protection case. Doc. 30. For the
purposes of its motion, the Court will accept as true the factual
assertions set forth in Leon County’s motion and in the complaint. “On
May 28, 2010, the United States Army Corps of Engineers (Corps) issued
Grady County [Georgia] Board of Commissioners . . . a Clean Water Act
permit (Permit) to construct a large fishing lake.” Doc. 30-4 at 3. In
response, two environmental organizations brought this action to declare
the Permit in violation of the Clean Water Act, 33 U.S.C. § 1251 et. seq.
and other statutes. Doc. 1.1 The Corps, plaintiffs contend, “improperly
approved the Permit based on a flawed angler demand study, an
inaccurate wetlands delineation, and an insufficient environmental
analysis.” Id. at 1-2.
Two months later, the Court granted the unopposed motion of the
Grady County Board of Commissioners to intervene. Doc. 18. Now
Leon County wants to intervene, doc. 30, but Grady County objects, doc.
39, while the plaintiffs and defendants do not. Leon County, located
downstream from Grady, 2 complains that the Corps’ environmental
analysis did not properly analyze the impact this project would have on
1
Even though neither county is in this district, venue is proper. See doc. 46.
“Tired Creek is a significant tributary of the upper Ochlockonee River, a river that
flows through southwest Georgia into Grady County, Georgia before passing directly
from Grady County into Leon County, Florida and making its way to the Gulf of
Mexico.” Doc. 30-4 at 3 ¶ 4. “Construction of the large dam and 960-acre fishing lake
will require the impoundment of sections of Tired Creek and the flooding of more
than 129 acres of wetlands and more than nine miles of streams.” Id. ¶ 6. “Any
changes in Tired Creek will be felt by Leon County.” Id. ¶ 57.
2
2
Leon County’s lakes, streams, and rivers as well as endangered species
within its borders. Doc. 30-4 at 3. It thus cites “potential significant
environmental impacts on Leon County.” Id. at 8.
In opposing Leon County’s intervention, Grady County says that
Leon County was involved in the lengthy pre-litigation phase of this case
(i.e., the Corps’ “notice and comment” period) and thus sat on its rights
here. The complaint was filed on November 8, 2010, doc. 1, it reminds,
yet Leon County failed to move to intervene until April 15, 2011, doc. 30.
Doc. 39 at 3-4. 3 And Leon County’s intervention, it insists, would
complicate its motion to admit non-administrative record materials into
this case. Doc. 39 at 5.
Finally, Grady County concludes, Leon County’s interests will be
adequately represented by the plaintiffs. Id. at 5-7. It points out that
Leon County’s proposed complaint in many instances was “copied wordfor-word from the [p]laintiffs’ [c]omplaint.” Doc. 39 at 7. Leon County
replies that its motion is timely, plaintiffs have no incentive to
adequately represent its specific, more parochial interests, and
It was not referred to the undersigned until June 8, 2011.
intervention now will not unduly delay or burden these proceedings.
Doc. 43.
I. GOVERNING STANDARDS
For Leon County to intervene under Rule 24(a)(2), it must show
that: (a) its motion is timely; (b) it claims an interest relating to the
property or transaction that is the subject of the action; (c) it is so
situated that the disposition of the action may as a practical matter
impair or impede its ability to protect that interest; and (d) the existing
parties do not adequately represent its interest. Fox v. Tyson Foods, Inc.,
519 F.3d 1298, 1302-1303 (11th Cir. 2008); Sierra Club, Inc. v. Leavitt,
488 F.3d 904, 910 (11th Cir. 2007); Shenandoah Riverkeeper v. Ox
Paperboard, LLC, 2011 WL 1870233 at * 2 (N.D.W. Va. May 16, 2011). 4
“An intervenor . . . must continue to meet these requirements
throughout the duration of the litigation, as courts must be able to
ensure that parties maintain a live interest in a case.” Coalition to
Rule 24 also provides for permissive intervention. That also requires a timely
motion, and the intervenor must show a claim or defense that shares a common
question of law or fact with the main action. Rule 24(b)(1)(B). “In exercising its
discretion, the court must consider whether the intervention will unduly delay or
prejudice the adjudication of the original parties' rights.” Rule 24(b)(3). See Discount
Payment Processing, Inc. v. Applied Card Systems, Inc., 2011 WL 2941264 at * 2
(W.D. Pa. Jul. 21, 2011). Leon seeks, in the alternative, permissive intervention here.
Doc. 43 at 13-14. Because it qualifies to intervene as of right, it is not necessary to
reach that argument.
4
4
Defend Affirmative Action v. Regents of Univ. of Mich., ___ F.3d ___, 2011
WL 2600665 at * 23 (6th Cir. Jul. 1, 2011).
II. ANALYSIS
A. Timeliness
In addressing the timeliness of an intervention motion, courts
generally consider four factors:
(1) the length of time during which the would-be intervenor knew
or reasonably should have known of his interest in the case before
he petitioned for leave to intervene; (2) the extent of prejudice to
the existing parties as a result of the would-be intervenor's failure
to apply as soon as he knew or reasonably should have known of his
interest; (3) the extent of prejudice to the would-be intervenor if his
petition is denied; and (4) the existence of unusual circumstances
militating either for or against a determination that the application
is timely. United States v. Jefferson County, 720 F.2d 1511, 1516
(11th Cir.1983).
Angel Flight of Ga., Inc. v. Angel Flight Am., Inc., 272 F. App’x 817, 819
(11th Cir. 2008), cited in Bumble Bee Foods, LLC v. Malo, Inc., 2009 WL
2762683 at * 2 (S.D. Ga. Aug. 31, 2010).
Leon County’s intervention motion is timely. There is no trial date
set and the deadline for the plaintiffs’ summary judgment motion is not
until August 26, 2011. Doc. 49. And there is no meaningful showing
that intervention will disrupt the current litigation schedule under which
the current parties are operating. In fact, the parties are limited to the
administrative record, doc. 47, so there are no discovery issues. Nor have
any of the primary parties even argued, much less shown, prejudice.
Indeed, they do not even object; only Grady County -- a fellow intervenor
-- does.
Note, too, that it was Grady County who, in February 2011,
beckoned Leon County to pause in intervening. See doc. 30-1 at 2 (Letter
from Grady’s counsel to Leon’s Commissioners seeking a preintervention conference); see also doc. 43 at 5-6 (recounting aftermath
showing ultimately fruitless communications into late March, 2011).
Even at that, the delay in the filing of Leon County’s motion -- just over
five months -- falls within a time period deemed timely by other courts in
this circuit. Office Depot, Inc. v. Nat. Union Fire Ins. Co. of Pittsburgh,
PA., 2010 WL 431886 at * 2 (S.D. Fla. Feb. 3, 2010). Finally, Grady
County’s only real prejudice showing -- that Leon might complicate
Grady’s “record motion,” doc. 39 at 5 -- is moot, for the district judge
has denied that motion. Doc. 47. And Leon County “does not intend to
ask the Court to supplement the record.” Doc. 43 at 4.
B. Adequacy of Leon’s Interest In This Case
Leon County must show a legally protectable interest, and it must
“be one which substantive law recognizes as belonging to or being owned
by the applicant.” Mt. Hawley Ins. Co. v. Sandy Lake Properties, Inc., 425
F.3d 1308, 1311 (11th Cir. 2005). A noncontingent property interest is
commonly claimed in intervention cases. It is “the most elementary type
of right that Rule 24(a) is designed to protect.” Diaz v. Southern Drilling
Corp., 427 F.2d 1118, 1124 (5th Cir. 1970), quoted in Shenandoah
Riverkeeper, 2011 WL 1870233 at * 2; see also Georgia v. U.S. Army
Corps of Eng'rs, 302 F.3d 1242, 1251-52 (11th Cir. 2002) (Florida had a
legally protectable interest in, inter alia, the quality and quantity of
water in the river, river basin, and bay into which the river flowed, for
purposes of determining its right to intervene). Here no one disputes
that this is a classic “A flushes, B is affected” scenario -- that Leon wants
to protect substantial portions of its land from what it claims will be a
substantial adverse environmental impact from Grady County’s
upstream activities.
Leon thus easily satisfies this intervention
requirement.
7
C. Prejudice to Leon’s Interest
Leon County also must show whether it will be practically
disadvantaged if not permitted to intervene. See Spring Constr. Co. v.
Harris, 614 F.2d 374 (4th Cir.1980). Some courts have held that the
potential for a negative stare decisis effect by itself can suffice. See Stone
v. First Union Corp., 371 F.3d 1305, 1309-10 (11th Cir. 2004), cited in
Shenandoah Riverkeeper, 2011 WL 1870233 at * 3. Leon County cites
that factor, doc. 43 at 6-7, and also points out that the plaintiff
environmental groups may well advance a broad focus (they “may desire
a resolution which advances their organizational purpose of protecting
and restoring rivers, streams, and wetlands and ensuring effective
implementation of environmental laws,” doc. 43 at 7), while Leon
County, as the “flushee,” remains focused solely on avoiding negative
effects to itself. Id. at 8. It also correctly reminds the Court that “a seat
in the courtroom often equates to a seat at the negotiating table,” and
that is important in this litigation sphere, where negotiated settlements
are common. Id.
The Court agrees with Leon County that it has met this element.
Again, Leon County is the “flushee” here. And it is easy to suppose a
8
different litigation focus between the “Big Picture” plaintiffs and Leon
County here. Plus Leon County, which is geographically adjacent to
Grady, has more negotiating leverage with Grady County than do the
plaintiffs. Counties are in a position to facilitate if not indirectly
influence tourist and other commerce flows into and out of their
respective territories. They also can negotiate the sharing of resources in
managing cross-border impacts both positive and negative.
Environmental interest groups, in contrast, operate completely out of
that loop and typically invoke only raw legal leverage.
D. Adequacy of Representation
“[T]he inadequate representation requirement of Rule 24(a)(2) is
satisfied if the [proposed intervenor] shows that representation of his
interest may be inadequate, and the burden of making that showing
should be treated as minimal.” Naples 9, LLC v. EverBank, 2011 WL
18846282011 WL 1884628 at * 3 (M.D. Fla. May 18, 2011) (quotes and
cite omitted). This factor is “guided primarily by practical
considerations, not technical distinctions.” Citizens for Balanced Use v.
Montana Wilderness Ass'n., ___ F. 3d ___, 2011 WL 3074809 at * 2 (9th
Cir. Jul. 26, 2011).
Go
Thus, Leon County need only show that there exists between it and
the plaintiffs a reasonable divergence or disunity of litigation strategy, if
not ultimate objective. See id. at * 4-7 (United States Forest Service did
not adequately represent interests of conservation groups in action
challenging Service's interim order limiting snowmobile and other
motorized and mechanized use in wilderness study area; each side
pursued a different scope of environmental restrictions). 5
Will the plaintiffs in this case adequately represent Leon
County’s interests? Grady County obviously didn’t think its interests
would be adequately protected by the plaintiffs when it moved to
intervene, yet it now contends to the contrary with respect to Leon.
5 Cases with different “ultimate objectives” are easier to decide than those where
the plaintiff and proposed intervenor-plaintiff share the same ultimate objective
and vary only in strategy if not also specific sub-interests. Compare M.E.S., Inc. v.
United States, ___ Fed.Cl. ___, 2011 WL 2712732 at * 3 (Fed. Cl. Jun. 30, 2011)
(“the minimal burden of establishing inadequate representation of a would-be
intervenor's interests by parties already in the suit is satisfied by establishing that
no party shares the would-be intervenor's ultimate objective.”) (quotes and cite
omitted), with Coalition to Defend Affirmative Action, 2011 WL 2600665 at * 23
(law student was not entitled to intervene as of right in declaratory judgment
action challenging state constitutional amendment prohibiting affirmative action
in public education, even though state attorney general had agreed to stipulation
to delay amendment's application while student wanted immediate enforcement;
the attorney general mounted a firm defense of the amendment and succeeded in
convincing the district court to grant summary judgment in his favor). At bottom,
the additional representation must not be “a mere makeweight that adds nothing
of substance to the debate.” Coalition to Defend Affirmative Action, 2011 WL
2600665 at * 23.
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The Court concludes that sauce for the goose is sauce for the gander.
In that regard, it is in “property cases [that] it usually will be easy to
show inadequate representation,” 7C W RIGHT & M ILLER: F EDERAL
P RAC. & P ROC. § 1909 (3rd ed. 2011), and that especially makes sense
in this, a “flush/flushee case” where the original plaintiffs
understandably will be inclined to pursue a broader (as opposed to
self-interested) focus. In fact, no one has rebutted Leon County’s
contention that
[h]ere, an environmental group that has a “purpose of protecting
and restoring rivers, streams, and wetlands and ensuring
effective implementation of environmental laws” does not have
the identical interests of a county solely interested in the
impacts to that county alone, regardless of potential beneficial or
deleterious impacts on rivers, streams, and wetlands in other
areas. . . .
Leon County wants only to prevent negative impacts in Leon
County from the proposed project and is not opposed to the
project if it can be completed in a way that does not harm Leon
County. Current Plaintiffs appear to want to prevent the project
and/or protect and restore rivers, streams, and wetlands and
ensure effective implementation of environmental laws in some
other manner as a result of this litigation. Further, current
Plaintiffs have so far in this litigation offered no arguments
related to the negative impacts on Leon County’s waters that
will be caused by this project.
Doc. 43 at 10, 11 (emphasis added).
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The Court therefore GRANTS Leon County, Florida’s Motion
To Intervene. Doc. 30.
This 1st day of August, 2011.
UNiTED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
12
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