Robert Ito Farm, Inc. v. County of Maui

Filing 92

ORDER REGARDING APPEAL OF MAGISTRATE JUDGE'S ORDER DENYING MOMS ON A MISSION HUI, MOLOKA'I MAHI'AI, GERRY ROSS, AND CENTER FOR FOOD SAFETY'S MOTION FOR LEAVE TO INTERVENE; ORDER GRANTING LEAVE TO PROPOSED INTERVENORS TO FILE AMICU S CURIAE BRIEF re 63 , 73 , 77 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 1/9/2015. "The court leaves untouched Magistrate Judge Kurren's intervention ruling. As that ruling was entered when Magistrate Jud ge Kurren was presiding over this case with the consent of the then-existing parties to this case, this court is without authority to review Magistrate Judge Kurren's ruling." "Proposed Intervenors are granted leave to file a brief as amicus curiae in opposition to Plaintiffs' pending summary judgment motion. The brief may be no longer than 3000 words and must be filed no later than January 30, 2015. Absent leave of court, no oral argument by Proposed Interveno rs will be allowed." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
)
)
)
)
Plaintiffs,
)
)
vs.
)
COUNTY OF MAUI,
)
)
)
Defendant,
)
)
and
)
)
ALIKA ATAY, et al.,
)
)
Intervenor)
Defendants,
)
)
THE MOMS ON A MISSION (MOM)
HUI, MOLOKA`I MAHI`AI, GERRY )
)
ROSS, and CENTER FOR FOOD
)
SAFETY,
)
)
Proposed
)
Intervenor)
Defendants.
_____________________________ )
ROBERT ITO FARM, INC., et
al.,

CIVIL NO. 14-00511 SOM-BMK
ORDER REGARDING APPEAL OF
MAGISTRATE JUDGE’S ORDER
DENYING MOMS ON A MISSION
HUI, MOLOKA`I MAHI`AI, GERRY
ROSS, AND CENTER FOR FOOD
SAFETY’S MOTION FOR LEAVE TO
INTERVENE; ORDER GRANTING
LEAVE TO PROPOSED INTERVENORS
TO FILE AMICUS CURIAE BRIEF

ORDER REGARDING APPEAL OF MAGISTRATE JUDGE’S
ORDER DENYING MOMS ON A MISSION HUI, MOLOKA`I
MAHI`AI, GERRY ROSS, AND CENTER FOR FOOD SAFETY’S
MOTION FOR LEAVE TO INTERVENE; ORDER GRANTING LEAVE TO
PROPOSED INTERVENORS TO FILE AMICUS CURIAE BRIEF
I.

INTRODUCTION
Plaintiffs in this case challenge a County of Maui

ordinance passed through the initiative process in the 2014
election that prohibits the cultivation of genetically modified
organisms.

Before the court is an appeal from an order issued by

Magistrate Judge Barry M. Kurren denying a motion to intervene

filed by Proposed Intervenors Moms on a Mission Hui, Moloka`i
Mahi`ai, Gerry Ross, and Center Food Safety.

The court does not

here disturb Magistrate Judge Kurren’s intervention ruling, but
does grant Proposed Intervenors leave to file a brief as amicus
curiae.
This court is compelled to resolve this intervention
issue in considerable haste.

Pending before the court is a

summary judgment motion filed by Plaintiffs.
are due toward the end of this month.

Opposing memoranda

Proposed Intervenors seek

to intervene for the purpose of filing an opposing memorandum by
that deadline.

A reply memorandum deadline and hearing date have

also been set with an eye toward giving the court an opportunity
to rule on the summary judgment motion before the date that the
challenged ordinance takes effect.
II.

PROPOSED INTERVENORS MAY NOT SEEK REVIEW BY A DISTRICT
JUDGE OF MAGISTRATE JUDGE KURREN’S INTERVENTION RULING
UNDER 28 U.S.C. § 636, LOCAL RULE 74.1, LOCAL RULE 74.2
OR RULE 72 OF THE FEDERAL RULES OF CIVIL PROCEDURE.
The court begins by addressing the procedural mechanism

that Proposed Intervenors have used for challenging Magistrate
Judge Kurren’s ruling.

In their original request, ECF No. 73,

Proposed Intervenors said they were taking an appeal from that
ruling to a district judge pursuant to 28 U.S.C. § 636(b)(1)(A),
which concerns rulings on pretrial matters, and that the district
judge should set aside the ruling if it was “clearly erroneous or
contrary to law” under Local Rule 74.1 and Rule 72 of the Federal
2

Rules of Civil Procedure.

In a subsequent filing, Proposed

Intervenors took the position that the district judge should
treat Magistrate Judge Kurren’s ruling as “findings and
recommendations” on a dispositive matter subject to de novo
review under 28 U.S.C. § 636(b)(1)(B), Local Rule 74.2, and Rule
72 of the Federal Rules of Civil Procedure.
Page ID # 2014.

See ECF No. 79 at

This court concludes that Magistrate Judge

Kurren’s ruling falls under neither provision of § 636(b)(1).
Subsection b of § 636 addresses matters that a district
judge may designate or assign to a magistrate judge.

Actions

that a magistrate judge takes under subsection b are subject to
review by a district judge.

At the time he denied Proposed

Intervenors’ motion to intervene, Magistrate Judge Kurren was not
acting pursuant to subsection b.

Instead, he was presiding over

this case pursuant to subsection c of 28 U.S.C. § 636.
Subsection c provides that, upon the consent of the parties,
a magistrate judge may conduct all proceedings in a civil matter
and order the entry of judgment in the case.

Section 636(c)(3)

provides that, upon entry of judgment in a case handled by a
magistrate judge with the consent of the parties, an appeal may
be taken directly to the court of appeals.
After Magistrate Judge Kurren denied Proposed
Intervenors’ motion to intervene, he ceased to be the presiding
judge in this action, as other parties whose intervention motion

3

he had granted declined to consent to his conducting all
proceedings.

The present district judge then became the judge

presiding over this case.
There does not appear to be any Ninth Circuit decision
addressing either the issue or whether subsection c allows a
magistrate judge to rule on an intervention motion brought by a
movant who has not expressly consented to the magistrate judge’s
handling of all matters in the case, or the issue of whether an
order denying intervention entered by a magistrate judge acting
under subsection c may be reviewed by a district judge.

There is

division among the circuit and district courts that have examined
these issues.

At the circuit court level, the division is seen

in the contrasting positions of the Second and Seventh Circuits.
In New York Chinese TV Programs, Inc. v. U.E.
Enterprises, Inc., 996 F.2d 21, 24-25 (2d Cir. 1993), the Second
Circuit said that, absent an intervenor’s consent, a magistrate
judge does not have the authority to enter a final order denying
intervention.

The Second Circuit reversed a district court

ruling in which a district judge stated that the district judge
lacked jurisdiction to review a magistrate judge’s order denying
intervention, issued while the magistrate judge was presiding
over a case under § 636(c).

The Second Circuit viewed the

magistrate judge’s order as having been in the nature of findings
and a recommendation subject to review by a district judge.

4

By contrast, in People Who Care v. Rockford Board of
Education, School District No. 205, 171 F.3d 1083, 1089 (7th Cir.
1999), the Seventh Circuit said that “the power to rule on
motions to intervene is a necessary and proper incident of the
magistrate judge’s power to decide the underlying case” under
§ 636(c)(1).

That statutory provision “requires only the consent

of ‘parties’ to the magistrate judge’s entering dispositive
orders.”

The Seventh Circuit noted that an applicant for

intervention is not a party and is instead only someone who
“wants to become a party.”

Id.

This court joins a number of district courts that,
having studied the issue, think the Seventh Circuit makes the
better argument.

See, e.g., Altier v. Worley Catastrophe

Response, LLC, 2012 WL 161824, at *5 (E.D. La. Jan. 18, 2012);
Centrue v. Golf Discount of St. Louis, Inc., 2010 WL 2802034, at
*2 (E.D. Mo. July 15, 2010); Natural Resources Defense Council v.
Gutierrez, 2007 WL 1518359, at *2 (N.D. Cal. May 22, 2007).
In the first place, the Second Circuit decision gives a
magistrate judge presiding by consent under § 636(c) less
deference than a magistrate judge presiding under § 636(b).

That

is, the Second Circuit treats a magistrate judge’s intervention
ruling as equivalent to findings and a recommendation subject to
de novo review by a district judge when the magistrate judge is
operating with the consent of the parties.

5

But when operating

under § 636(b) (that is, without the consent of the parties), a
magistrate judge deciding an intervention motion would typically
enter an order, not findings and recommendation.

When the

magistrate judge is operating under § 636(b), the magistrate
judge’s order on a nondispositive matter such as an intervention
motion is subject to review by a district judge under the more
deferential “clearly erroneous and contrary to law” standard.

In

this court’s view, it defies logic to say that a ruling by a
magistrate judge operating with the consent of the parties is
subject to more exacting scrutiny than exactly the same ruling by
a magistrate judge operating without the consent of the parties.
In the second place, this court views the Second
Circuit decision as undercutting the very authority that § 636(c)
was intended to vest in magistrate judges to manage cases with
the consent of the parties.

In focusing on the interests of

nonparties, the Second Circuit diminishes the ability of a
magistrate judge to manage a case that the parties have agreed
the magistrate judge may manage.

Would-be intervenors are

certainly not the only nonparties who might demand that issues be
addressed by Article III judges, and the Second Circuit’s
reasoning could arguably invite other challenges by nonparties
that could render application of § 636(c) impossible.

Could a

nonparty witness seeking to quash a subpoena requiring the
witness to appear at a deposition seek review of a magistrate

6

judge’s decision by a district judge even when the magistrate
judge is presiding under § 636(c)?

What, if any, trial rulings

in a § 636(c) case could nonparties immediately appeal to
district judges?

For example, could a trial witness held in

civil contempt for refusing to answer a question appeal to a
district judge?

Could even a prospective juror seek review by a

district judge of a magistrate judge’s denial of the prospective
juror’s request to be excused from serving as a juror?

It is not

clear to this court that a prospective intervenor has more rights
to consideration by an Article III judge than every other
nonparty affected by rulings made by a magistrate judge operating
under § 636(c).

Yet, the disruption to an ongoing trial if every

ruling affecting a nonparty during trial can be immediately
appealed to a district judge is obvious.
Consistent with preserving the essence of the consent
process embodied in § 636(c), this court rejects the suggestion
that it may review, either de novo or under a “clearly erroneous
or contrary to law” standard, a ruling entered by a magistrate
judge presiding over a case under §636(c).

Magistrate Judge

Kurren’s ruling, entered while Magistrate Judge Kurren had the
consent of the then-parties to the case, was such a ruling, and
this court will not countenance an appeal from it or rule on
objections to it.

7

III.

PROSPECTIVE INTERVENORS WERE NEVER WITHOUT RECOURSE.
Prospective Intervenors contend that, if Magistrate

Judge Kurren’s ruling is not reviewable by a district judge,
Prospective Intervenors are effectively left without any
opportunity for review.

Of course, Magistrate Judge Kurren’s

ruling does actually remain reviewable by the Ninth Circuit, as
even Prospective Intervenors acknowledge (although they complain
that review by the Ninth Circuit will not occur quickly enough to
permit their participation in the upcoming proceedings on
Plaintiffs’ pending motion).

And appellate review of Magistrate

Judge Kurren’s ruling was never the only avenue open to
Prospective Intervenors.

Nothing ever prevented Prospective

Intervenors from recognizing that, given the effect of § 636(c),
Magistrate Judge Kurren’s denial of intervention was tantamount
to a district judge’s denial of intervention.

Had this case been

originally assigned to a different district judge and had that
different district judge denied intervention, Prospective
Intervenors could not have “appealed” the first district judge’s
ruling to the present district judge, but they could arguably
have at least tried to make a showing as to why they were not
barred by the law of the case doctrine from having the present
district judge entertain a new intervention request by them.
The court hastens to say that the court is not advising
an endless revisiting of previously decided matters.

8

The court

is simply pointing out that it would always feel empowered to
enter its own correct ruling if persuaded that a prior ruling
entered before the case was assigned to the present judge was
erroneous, even if this court lacked authority to entertain a
direct “appeal” from a magistrate judge who had presided under
§ 636(c).

See United States v. Cuddy, 147 F.3d 1111, 1114 (9th

Cir. 1998) (“a court may have discretion to depart from the law
of the case if:

1) the first decision was clearly erroneous; 2)

an intervening change in the law has occurred; 3) the evidence on
remand is substantially different; 4) other changed circumstances
exist; or 5) a manifest injustice would otherwise result”).
Proposed Intervenors chose to seek review only under §

636(b).

This was, perhaps, a strategic decision, possibly made with the
thought that this might result in expedited action by this court,
but also possibly made with the thought that this court would
look at the status of the case as it existed when Magistrate
Judge Kurren issued his ruling (i.e., before anyone else was
allowed to intervene).
To forestall what might be a fruitless endeavor, this
court states that any new intervention request by Prospective
Intervenors would be viewed in the light of the existing state of
the case, which already includes Intervenor Defendants Alika
Atay, Lorrin Pang, Mark Sheehan, Bonnie Marsh, Lei`ohu Ryder, and
SHAKA Movement (“SHAKA Intervenors”).

9

The SHAKA Intervenors, who

were only applicants for intervention earlier, are now
indisputably existing parties.

As Proposed Intervenors’ own

papers recognize, see ECF No. 73 at Page ID # 1464, to establish
that they are entitled to intervention as of right under Rule
24(a) of the Federal Rules of Civil Procedure, they must show,
among other things, that their significant interests will not be
adequately represented by existing parties.

Whatever the merits

of the arguments Proposed Intervenors made to Magistrate Judge
Kurren on this matter, those arguments require considerable
adjustment now that SHAKA Intervenors are existing parties.
While this court is not in the business of offering
advisory rulings on motions that are not before the court, it
does not want to see anyone (including, of course, the court
itself) put to any waste of time or money, especially in a case
that is already proceeding on a fast track.

The court

accordingly notes that it has not so far discerned in the record
any reason that it might grant intervention as of right or
permissive intervention to Prospective Intervenors, given the
existing state of the case.
IV.

LEAVE TO FILE A BRIEF AS AMICUS CURIAE IS GRANTED.
The court grants Prospective Intervenors leave to file

a brief as amicus curiae.

The brief may be filed in opposition

to Plaintiffs’ pending dispositive motion no later than January
30, 2015, and may be no longer than 3000 words.

10

Absent leave of

court, no oral argument will be allowed by Prospective
Intervenors.
V.

CONCLUSION.
The court leaves untouched Magistrate Judge Kurren’s

intervention ruling.

As that ruling was entered when Magistrate

Judge Kurren was presiding over this case with the consent of the
then-existing parties to this case, this court is without
authority to review Magistrate Judge Kurren’s ruling.
Proposed Intervenors are granted leave to file a brief
as amicus curiae in opposition to Plaintiffs’ pending summary
judgment motion.

The brief may be no longer than 3000 words and

must be filed no later than January 30, 2015.

Absent leave of

court, no oral argument by Proposed Intervenors will be allowed.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, January 9, 2015.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

Robert Ito Farm, et al. v. County of Maui; Civil No. 14-00511
SOM-BMK; ORDER REGARDING APPEAL OF MAGISTRATE JUDGE’S ORDER
DENYING MOMS ON A MISSION HUI, MOLOKA`I MAHI`AI, GERRY ROSS, AND
CENTER FOR FOOD SAFETY’S MOTION FOR LEAVE TO INTERVENE; ORDER
GRANTING LEAVE TO PROPOSED INTERVENORS TO FILE AMICUS CURIAE
BRIEF
11