Karst Environmental Education and Protection, Inc v. FEDERAL HIGHWAY ADMINISTRATION et al

Filing 28

MEMORANDUM OPINION by Chief Judge Thomas B. Russell on 4/14/2011 re 7 MOTION to Intervene and 24 Alternative MOTION for Leave to File a Brief as Amicus Curiae filed by Fiscal Court of Warren County, Kentucky, Inter-Modal Transportation Authority, Inc., City of Bowling Green, KY. The Movants' motion to intervene as Defendants 7 is DENIED. An appropriate order shall issue. The Movants' motion for leave to file a brief as amicus curiae 24 is GRANTED. cc: Counsel (CDF)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION
CASE NO. 1:10-CV-00154-R
KARST ENVIRONMENTAL EDUCATION
AND PROTECTION, INC.

PLAINTIFF

v.
FEDERAL HIGHWAY ADMINISTRATION, et al.

DEFENDANTS

MEMORANDUM OPINION
This matter is before the Court upon Movants’ motion to intervene as defendants (DN 7).
Plaintiff and Defendants have both responded in opposition (DN 14; DN 17). Movants have
replied (DN 18; DN 19). This motion is now ripe of adjudication. For the reasons that follow,
Movants’ motion is DENIED.
Movants have also filed a motion for leave to file a brief as amicus curiae (DN 24). For
the reasons that follow, this motion is GRANTED. Movants may participate in the instant action
as amicus curiae and are permitted to file memoranda to support or oppose any dispositive
motions.
FACTUAL BACKGROUND
This action has its origins in the commercial and industrial growth that has characterized
Bowling Green, Kentucky (“City”), for the past several decades. A recent study by the federal
government found that the City and the county in which it sits, Warren County (“County”), serve
as the main economic center for southwestern Kentucky, and that both are increasing rapidly in
population. DN 17-2 at 11. This growth has served to create a prosperous, economically-vibrant
region of the state; it has also strained the existing infrastructure of surrounding area, in
particular the locality’s roads and highways.
1

To the northeast of the City are located, U.S. interstate I-65 (“I-65") and U.S. Highway
31-West (“U.S. 31”). The two highways project out from the City like the spokes of a wheel. I65 heads due east while U.S. 31 takes a more northeasterly route. The corridor created by the
divergence of the two thoroughfares has grown substantially in the last thirty years (“the
Corridor”). It is heavily populated, with several industrial parks, an assortment of commercial
businesses, a number of apartment complexes, mobile home parks, and single family residences.
Growth in and around the Corridor has caused increased traffic on the surrounding roads. This
in turn has led to a spike in motor-vehicle accidents that is “higher than those for other similar
Kentucky highway segments.” DN 17-2 at 1-15.
One of these industrial parks in the Corridor is the Kentucky Transpark (“Transpark”), an
industrial economic zone developed by the Inter-Modal Transportation Authority, Inc. (“ITA”).
ITA is a nonprofit agency formed by the City and County to purchase land for and to develop the
Transpark. It purchased the 800 acres the Transpark now occupies through a $25 million
industrial revenue bond issuance. In 2007, the City and County assumed equal responsibility for
the bonds if ITA fails to comply with its interest-payment schedule.
To alleviate the increased congestion and to create a safer network of roads, the
Kentucky Transportation Cabinet (“KYTC”) and the Federal Highway Administration
(“FHWA”) began planning a connector road that would extend from north to south, linking the
two spokes of the Corridor, I-65 and U.S. 31 (“Project”). In 2003, FHWA published notices of
the plan and stated its intent to analyze the Project under the National Environmental Policy Act
of 1969 (“NEPA”).1 A number of meetings were held with state and government agencies that

1

In Friends of Tims Ford v. Tenn. Valley Auth., 585 F.3d 955, 968 (6th Cir. 2009), the
Sixth Circuit provides the following brief description of NEPA:
2

included the City, the County, the United States Park Service, the Kentucky Departments of
Agriculture and Fish and Wildlife Resources, and others. The groups discussed the
environmental impact of the Project and its alternatives at length, after which the FHWA and
KYTC released the Final Environmental Impact Statement (“FEIS”). The FEIS described eight
different options for the Project, and then detailed the labors of FHWA and KYTC in deciding
on which option to pursue. Eventually, the FHWA decided upon Alternative 6-Orange, as laid
out in the FEIS, for the Project. Alternative 6-Orange calls for a four-lane divided highway
between I-65 and U.S. 31, with anticipated costs of more than $70 million. As designed, the
Project will intersect the Transpark twice and the primary interchange with U.S. 31 will sit only
9/10s of a mile away from the Transpark’s entrance. Id. at 19, 66-69. Although the City,
County, and ITA did participate in these meetings before the FEIS’s publication, they were not
involved in the ultimate decision arrived upon by FHWA and KYTC.
PROCEDURAL BACKGROUND
Karst Environmental Education and Protection, Inc. (“KEEP”) is a nonprofit Kentucky
Corporation that describes its mission “to educate and advocate towards the goal of protecting,
conserving, and defending karst, karst systems, and karst landscapes.” DN 11 at 6. Karst
topography is “usually characterized by barren, rocky ground, caves, sinkholes, underground
rivers, and . . . results from the excavating effects of underground water on massive soluble

NEPA is a procedural statute, designed to ensure that federal agencies consider the
environmental impact of their actions. To satisfy this goal, NEPA provides that
when a federal agency undertakes major federal action significantly affecting the
quality of the human environment, it must prepare an [Environmental Impact
Statement] concerning that action.
Id. at 968. (internal citations and quotation marks omitted).
3

limestone.” Encyclopedia Britannica Online, www.britannica.com (last visited February 14,
2011) (defining “karst”). According to KEEP’s complaint, the area around the City is one of the
more elaborate examples of karst topography in the country, the keystone being the cave system
of Mammoth Cave National Park, which stretches some 400 miles in all directions.
On October 5, 2010, KEEP brought this action against the FHWA, the administrator of
the FHWA, and Kentucky’s division administrator of the FHWA in his official capacity
(collectively “Defendants”). KEEP’s Complaint asks for a declaratory judgment finding that the
FHWA violated NEPA when it failed to make a number of factual and scientific findings before
deciding to proceed with the Project.2 KEEP also seeks injunctive relief to stop the Project from
progressing.
On December 12, 2010, the City, the County, and ITA (collectively “Movants”) filed
their joint Motion to Intervene in the action as defendants under Federal Rule of Civil Procedure
24. In it, the Movants declare that they have number of important financial and public interests
implicated by this litigation, that are not being adequately represented, and therefore they are
entitled to intervention of right under Rule 24(a)(2). Alternatively, Movants state that the Court
should grant permissive intervention as described in Rule 24(b), as only they will be “able to
provide a uniquely local perspective” to the litigation. DN 7-1 at 12. On either count however,
the Movants are in firm support of the Project and would work to see it constructed in its current
form should the Court to allow them to intervene. KEEP and Defendants both urge the Court to
deny the Movants’ request in large part because Movants do not have a legal interest recognized

2

Although NEPA does not include a private right of action, legal action is permitted
through the Administrative Procedure Act (“APA”). Friends of Tims Ford, 585 F.3d at 968.
However, as this motion confronts only the jurisprudence of Rule 24, an in depth analysis of
NEPA and the APA is unnecessary.
4

in the context of Rule 24 at stake in this litigation. KEEP and Defendants suggest that the more
appropriate role for Movants in this action is that of amicus curiae.
STANDARD
Federal Rule of Civil Procedure 24 allows for two types of intervention: intervention of
right and permissive intervention. Subsection (a)(2) of the rule provides that a non-party may
intervene as “of right” when, “[o]n timely motion,” the movant “claims an interest relating to the
property or transaction that is the subject of the action, and is so situated that disposing of the
action may as a practical matter impair or impede the movant’s ability to protect its interest,
unless existing parties adequately represent that interest.” Fed. R. Civ. P. 24(a)(2). In other
words, Rule 24 allows an absentee party to petition for intervention when it “stands to have its
interests harmed.” Glancy v. Taubman Centers, Inc., 373 F.3d 656, 670 n. 13 (6th Cir. 2004).
The Sixth Circuit has held that Rule 24 “should be ‘broadly construed in favor of potential
intervenors.’” Coal. to Defend Affirmative Action v. Granholm, 501 F.3d 775, 779 (6th Cir.
2007) (quoting Purnell v. City of Akron, 925 F.2d 941, 950 (6th Cir. 1991)).
On the other hand, Rule 24(b) describes that a party is permitted to intervene when, on a
timely motion, the party “is given a conditional right to intervene by a federal statute” or “has a
claim or defense that shares with the main action a common question of law or fact.” Fed. R.
Civ. P. 24(b). In choosing to grant or deny permissive intervention, not only is the trial court
bestowed with broad discretion, Afro Am. Patrolmen's League v. Duck, 503 F.2d 294, 298 (6th
Cir. 1974), but it must also seek to guard against any “undue[] delay or prejudice [to] the
adjudication of the rights of the original parties.” Fed. R. Civ. P. 24(b)(3).
Finally, in addressing the factual allegations of the parties, this court will accept “as true
the non-conclusory allegations made in support of an intervention motion.” Sw. Ctr. for
5

Biological Diversity v. Berg, 268 F.3d 810, 819 (9th Cir. 2001); see Reich v. ABC/York-Estes
Corp., 64 F.3d 316, 321 (7th Cir. 1995).
ANALYSIS
I. Intervention of Right
For the Movants to successfully intervene in this action under Rule 24(a)(2),3 they:
must establish four factors before being entitled to intervene: (1) the motion to
intervene is timely; (2) the proposed intervenor has a substantial legal interest in the
subject matter of the case; (3) the proposed intervenor’s ability to protect their
interest may be impaired in the absence of intervention; and (4) the parties already
before the court cannot adequately protect the proposed intervenor’s interest.
Granholm, 501 F.3d at 779 (citing Grutter v. Bollinger, 188 F.3d 394, 397-98 (6th Cir. 1999)).
Each of the factors must be shown, as the absence of even one will compel the Court to deny
Movants’ request. United States v. Michigan, 424 F.3d 438, 443 (6th Cir. 2005) (quoting
Grubbs v. Norris, 870 F.2d 343, 345 (6th Cir. 1989)).
In addressing the four requisite factors for intervention under Rule 24(a)(2), the parties
focus the bulk of their attention on whether the Movants have a sufficient legal interest in the
subject matter of the litigation. ITA offers three separate interests implicated in the instant
action. First, simply by virtue of its ownership of the Transpark and when considering the
proximity of the Project to its investment, ITA says it has an interest in this litigation. It also
claims a protected interest in “providing safe and adequate transportation” in the area around the
Transpark. DN 7-1 at 6, 9. ITA further asserts that its obligation to pay off the $25 million bond
issuance is directly related to the Project’s completion and is therefore a strong legal interest in

3

Rule 24(a)(1) does provide intervention of right where it is founded on a federal statute.
Fed. R. Civ. P. 24(a)(1). However, for this matter, no such statute exists; therefore this section
of the rule is not explored.
6

the outcome of this litigation. The City and County’s interests in this litigation track those of
ITA. They state that they “have an interest in providing for the safety and convenience of their
citizens and those who travel the public roads in the area of the [Project]” Id. at 7. Each also
argues it has an interest in the satisfaction of the bond issuance, as both are accountable for half
of the financial obligation. Finally, the City and County declare that the Project will provide a
much needed stimulus to the local economy and ultimately increase their tax base by improving
property values. They argue that this economic impact is an “interest sufficient to entitle them to
intervene in a lawsuit by environmentalists against the government seeking enforcement of
federal regulatory requirements.” Id. at 9. KEEP and Defendants respond that these interests are
not sufficiently implicated in this litigation to grant the Movants intervention.
In examining the requisite interest for Rule 24(a)(2), this circuit has “opted for a rather
expansive notion” of the factor. Michigan State AFL-CIO v. Miller, 103 F.3d 1240, 1245 (6th
Cir. 1997) (citations omitted). In describing its own jurisprudence on the subject, the Sixth
Circuit has “noted that an intervenor need not have the same standing necessary to initiate a
lawsuit” and “cited with approval decisions of other courts ‘reject[ing] the notion that Rule
24(a)(2) requires a specific legal or equitable interest.’” Id. (citations omitted). It has also
instructed lower courts to construe the term “liberally.” Bradley v. Milliken, 828 F.2d 1186,
1193 (6th Cir. 1987). These past rulings do not mean however that “any articulated interest will
do.” Granholm, 501 F.3d at 780 (citations omitted). Rather, would-be intervenors must show “a
direct, significant legally protectable interest” as the subject matter of the litigation. United
States v. Detroit Intern. Bridge Co., 7 F.3d 497, 501 (6th Cir. 1993).
Exactly what constitutes an “interest” under Rule 24(a)(2) is an ever evolving question in
federal jurisprudence. “Courts have enjoyed little success in attempting to define precisely the
7

type of interest necessary for intervention.” Sanguine, Ltd. v. U.S. Dept. of Interior, 736 F.2d
1416, 1420 (10th Cir. 1984) (citations omitted). Moreover, commentators on the subject have
“bemoaned the . . . dearth of guidance” from the Supreme Court on the matter. Daniel R.
Mandelker, Intervention as of Right, NEPA Law and Litig. § 4:26.2 (July 2010) (listing law
review articles). What is a proper interest under Rule 24(a)(2) is only further complicated in
actions under NEPA, as plaintiffs in these cases typically bring suit against government agencies
seeking to enforce particular statutes against third-parties. Erik Figlio, Stacking the Deck
Against “Purely Economic Interest”: Inequity and Intervention in Environmental Litigation, 35
Ga. L. Rev. 1219, 1231 (2001). Thus, NEPA cases typically impact a variety of individuals who
are not parties to the original suit, are nevertheless directly implicated by the action, and who
therefore frequently seek to intervene to protect their legal rights. Id.
Here, the Court is asked to determine whether the above-described interests are
sufficiently significant to merit the Movant’s intervention into an action brought under NEPA.
The following provides introductory guidance with the type of interest required to intervene:
A person whose interest in the matter of litigation is not a direct or substantial
interest, but is an indirect, inconsequential, remote, conjectural or contingent one,
cannot intervene. A person having merely a collateral interest in the subject matter
of a proceeding cannot intervene in the proceeding. . . . A person or entity does not
have a sufficient interest to qualify for the right to intervene merely because an
impending judgment will have some effect on him or her. The judgment to be
rendered must affect the proposed intervenor’s direct or personal rights, not those of
another.
59 AM. JUR. 2d Parties § 135 (1987) (footnotes omitted). In describing the rationale for changes
to Rule 24 in 1966, the Third Circuit said that the alterations were primarily “to allow
intervention by those who might be practically disadvantaged by the disposition of the action.”
Kleissler v. U.S. Forest Serv., 157 F.3d 964, 970 (3rd Cir. 1998).
8

Few cases in the footprint of the Sixth Circuit have examined whether a party possessed a
sufficient interest under Rule 24(a)(2) to intervene in a NEPA action. In fact, the only pertinent
case this Court encountered was Center for Biological Diversity v. Rural Utilities Service,
decided by Judge Hood in the Eastern District of Kentucky.4 No. 5:08-292-JMH, 2008 WL
4186891, at *1 (E.D. Ky. Sept. 10, 2008). In it, the plaintiffs brought action under NEPA against
the Rural Utility Service (“RUS”), a federal agency under the umbrella the United States
Department of Agriculture. Plaintiffs stated that RUS had violated its own rules and regulations
when it agreed to fund in-part the construction of two gas-fired turbines for a non-profit electric
cooperative. Id. at *1-2. Judge Hood found that the cooperative had “a substantial legal
interests in the case” since it was under a statutory obligation to provide electric power to a
portion of Kentucky and the turbine construction was directly related to this obligation. Id. at
*3.
Appeals courts in other circuits have made analogous findings concerning Rule 24(a)(2)
interests, where intervenors possessed defined contractual or real property rights that were
subject to change as a result of NEPA litigation. In Sierra Club v. Espy, environmental groups
initiated a lawsuit against the United States Forest Service under NEPA, and several other
federal statutes, to challenge its management of several national forests in Texas. 18 F.3d 1202,
1204 (5th Cir 1994). There, the district court denied a motion to intervene by several timber
companies, deciding that they did not have a protectable interest in the litigation despite

4

To be sure, there have been other actions under NEPA in this circuit where litigants
have sought to intervene. See e.g., Friends of Tims Ford, 585 F.3d at 955; State of Ohio ex rel.
Brown v. Callaway, 497 F.2d 1235, 1241-42 (6th Cir. 1974); Anglers of the AU Sable v. U.S.
Forest Serv., 590 F. Supp. 2d 877, 881 (E.D. Mich. 2008). Yet none of these cases have
analyzed the interest requirement under Rule 24(a)(2).
9

possessing contracts that granted the companies rights to harvest timber in the forests. Id. at
1204-05. The court of appeals disagreed, deciding that the companies could intervene under
Rule 24(a)(2) because each had “legally protectable interests in [their] existing timber contracts.”
Id. at 1207. In Southwest Center for Biological Diversity v. Berg, a circuit court also reversed
the trial court’s decision to deny developers’ motion to intervene in a NEPA case where
environmental groups initiated an action against the city of San Diego, objecting to its
conservation plans. 268 F.3d 810, 814 (9th Cir. 2001). In so deciding, the court discussed the
importance of its finding that the developers were third-party beneficiaries in a number of
contracts directly implicated by changes made to the plans. Id. at 820-21. Espy and Berg5 are
representative of today’s legal current, which typically requires intervenors to show contractual,
real property, or specific economic rights at stake in the subject matter of NEPA litigation. See
e.g., WildEarth Guardians v. U.S. Forest Service, 573 F.3d 992, 995-96 (10th Cir. 2009) (owners
of mine possessed protectable, real-property interest under 24(a) in law suit under NEPA where
an environmental group challenged the Forest Service’s approval of a plan to vent methane gas
from mining operation); Kleissler, 157 F.3d at 972-73 (local school districts had protectable,
economic and statutory interest in litigation where plaintiffs sought to enjoin logging under
NEPA and school districts received a portion of money generated from logging pursuant to a
state statute); Greenpeace Found. v. Daley, 122 F. Supp. 2d 1110, 1114 (D. Haw. 2000) (lobster
fishermen had protectable, economic interest under 24(a)(2) in suit under NEPA and the

5

Both Espy and Berg are cited as favorable precedents for the Movants. The Court fails
to see the similarities. Both cases unabashedly concern the intervenors’ interests in a case due to
their preexisting contract rights. Such concerns are no where to be found in the current
litigation. While the Movants raise certain issues with this straightforward interpretation in their
replies, the reasoning they offer is unavailing, as it focuses on trivial portions of what are
otherwise two unambiguous decisions.
10

Endangered Species Act against the Department of Commerce where a plaintiff filed for
injunctive relief to stop lobster fishing); see also Cnty. of St. Louis v. Thomas, 162 F.R.D. 583,
586-87 (D. Minn. 1995) (intervenors possessed a protectable, environmental interest in subject
matter of litigation under 24(a)).
In reviewing the interests offered by the Movants, the Court believes that none offers a
legitimate basis for intervention. First, though the Movants each claim a protectable interest in
the success or failure of the bond issuance, this interest is far too attenuated to satisfy the
standard under Rule 24(a)(2). Whether they are able to satisfy their financial obligations will be
impacted be a variety of factors ranging from the region’s overall economic climate, to the City’s
and County’s tax rates as compared to other similarly situated municipalities. No party can show
conclusively that the Project’s completion will ensure the financial viability of the Transpark or
the timely repayment of the bond issuance. Additionally, the bond issuance is entirely unrelated
to the Project; ITA purchased the land with the issuance’s funds a number of years before the
FHWA ever issued the FEIS with the Project’s current design. As such, this Court is incapable
of construing such a speculative interest as one that is “direct, significant [and] legally
protectable.” Detroit Intern. Bridge Co., 7 F.3d at 501.
Second, the City’s and County’s interests in their tax bases and the region’s economic
development are equally remote and unpredictable to allow intervention of right. The sum result
of the Project will not affect the respective tax revenues; rather the City and County hope that its
completion will draw businesses to the Transpark, which will in turn stimulate economic growth,
thereby improving their bottom line.6 Accordingly, the “protectable interest” cited by the City

6

If the City and County could more conclusively establish an adverse impact on their tax
revenues, their intervention into this matter may in fact be appropriate. See Scotts Valley Band
11

and County is not directly impacted by the current litigation, but instead contingent on a string of
the other occurrences. Other courts have found, and this Court agrees, that an interest
“‘contingent upon the occurrence of a sequence of events before it becomes colorable, will not
satisfy [Rule 24(a)].’” Brennan v. N.Y.C. Bd. of Educ., 260 F.3d 123, 129 (2d Cir. 2001)
(quoting Washington Elec. Coop., Inc. v. Massachusetts Mun. Wholesale Elec. Co., 922 F.2d 92,
97 (2d Cir. 1990)). The Court is also unpersuaded by the City and County’s assertions that the
overall economic conditions of the region are an “interest sufficient to entitle them to intervene.”
DN 7-1 at 9. The Court could not find, nor do the Movants provide, supportive precedent
finding that the overall economic outlook of the region is a legal interest upon which a Rule
24(a)(2) motion may be founded. Indeed, to allow the City and County to interject themselves
into this action under this rationale would be to fling open the doors to any party who could cite
any benefit from the Project, no matter how attenuated the causal chain. Such a result could not
have been the intent of the drafters when the rule was crafted.
Next, the City and County claim they have a legally protectable interest “in providing for
the safety and convenience of their citizens and those who travel the public roads in the area of
the [Project].” DN 7-1 at 7. This argument is without merit. First, as both KEEP and
Defendants point out, neither the City nor the County are charged with maintaining I-65 or 31U.S.; the responsibility falls to the federal and state governments respectively. Consequently,
the traffic accidents, protection from which allegedly represents the primary motivation for
intervention, are not occurring on byways under the direct supervision of any potential

of Pomo Indians of Sugar Bowl Rancheria v. United States, 921 F.2d 924, 927-28 (9th Cir. 1990)
(removal of land from municipality’s jurisdiction would affect tax base and therefore
intervention was appropriate). Here however, the nexus between projected tax revenue and the
Project’s construction is overly tenuous.
12

intervenor. To the extent that the City and County’s interest can be construed as one merely
protecting the safety and well being of its residents, courts have consistently held that
municipalities are not vested with the power to protect those interests under the theory of parens
patriae. See Larwin Mortg. Investors v. Suffolk Cnty., Nos. 87-1454, 87-1522, 1988 WL 76537,
at *6 (6th Cir. 1988); United States v. City of Pittsburg, 661 F.2d 783, 786-87 (9th Cir. 1981). In
their reply to this motion, the City and County point to a number of different cases which
ostensibly stand for the proposition that municipalities may intervene in law suits challenging
federal action. DN 19 at 6. These cases are either distinguishable from or irrelevant to the
matter at hand. More importantly, none of the precedent is controlling on this Court’s decision,
as all the cases arise outside the Sixth Circuit.
Finally, that the Transpark property will be impacted by the Project does not bestow a
legally protectable interest upon ITA. In so deciding, the Court first rejects ITA’s contention
that mere proximity to the Project provides it an interest under Rule 24(a)(2). While ITA has not
pointed to a relevant judicial decision where intervention of right was appropriate due solely to
an intervenor’s proximity to a construction project, the Court has found examples that stand for
the exact opposite proposition. See e.g., Wade v. Goldschmidt, 673 F.2d 182, 184-86 (7th Cir.
1982) (no right of intervention where proposed bridge was situated near potential municipalintervenors); Dodson v. Salvitti, 77 F.R.D. 674, 676 (E.D. Pa. 1977) (no legally, protecable
interest in litigation where potential intervenors sought to join law suit to establish low income
housing near intervenors’ homes). Accepting for a moment ITA’s argument, if mere proximity
to the Project was to entitle a party to intervention, what would stop other similarly situated
parties from joining the litigation? Would Movants have the Court use only milage from the
Project to determine whether an individual has a legally protectable interest or should the Court
13

also consider the largess of property holdings as well? Subscribing to Movants’ logic
momentarily, it is easy to imagine an arduous scenario where in determining intervention under
Rule 24(a)(2), all nearby real property owners would be permitted to intervene to support or
oppose this construction. In addition, where other courts have examined whether property
owners held a permissible interest for intervention due to nearby construction, the potential
intervenors brought their motions in objection to the construction. See Nextel Comm’ns of
Mid-Atlantic, Inc. v. Town of Hanson, 311 F. Supp. 2d 142, 150 (D. Mass. 2004) (objecting to
the construction of a radio tower); Bachman v. Hecht, 659 F. Supp. 308, 310 (D.V.I. 1986)
(objecting to the construction of a condominium complex). Here, according to the filings before
the Court, ITA has no wish to impede the Project or alter it in any way; rather it wants to see it
completed as currently designed. ITA has failed to provide, nor has this Court encountered, a
case that states a property owner has a legally protectable interest in its general desire for a third
party to complete a nearby construction project. Therefore, the Court must reject this argument.
That the Project as currently designed is also slated to intersect the Tranpark is equally
ineffective in persuading this Court to allow ITA to intervene. As stated earlier, ITA supports
the Project’s current design and its expeditious construction. Past actions finding an interest
under Rule 24(a)(2) for real property owners have arisen in large part on three distinct grounds:
(1) owners or possessors of land seeking to intervene in cases that dispose of land through sale or
condemnation,7 (2) owners attempting to stop or alter a nearby, objectionable construction

7

See e.g., Fresno Cnty v. Andrus, 622 F.2d 436, 438 (9th Cir. 1980) (group of current
and prospective farmers who had right to purchase land under reclamation laws had interest in
litigation seeking to require government agency to enforce certain provisions of same
reclamation laws); In re Lopez-Soto, 764 F.2d 23, 27 (1st Cir. 1985) (tenant of property had
interest in bankruptcy litigation relating to the property); Oneida Indian Nation of N.Y. v. New
York, 201 F.R.D. 64, 69-71 (N.D.N.Y. 2001) (Native American tribe claiming interest in land
14

project,8 and (3) owners opposing a proposed impact on their land.9 The current action does not
fit neatly into any of these categories. In the past, intervenors have held an interest in the
litigation to prevent a harmful impact upon their real property that arose from a third-party’s
construction endeavor; here Movants instead seek to intervene only to support the FHWA in its
quest to complete the Project. Was this Court to accept ITA’s mere ownership of the Transpark
and its desire to see the Project complete a sufficient interest to intervene, then every owner

under eighteenth century treaty could intervene in lawsuit where another tribe was seeking to
assert its own claims over same land held by the state of New York); Lennox Indus., Inc. v.
Caicedo Yusti, 172 F.R.D. 617, 621 (D.P.R. 1997) (intervenor-bank had an interest in a
foreclosure action where it was holder in due course of secondary note on the property); Home
Sav. of Am., FSB v. Pioneer Bank and Trust Co., 169 F.R.D. 332, 335(N.D. Ill. 1996) (co-owner
of mortgaged property possessed interest to intervene in foreclosure action involving property’s
other owners).
8

See e.g., Nextel Commc’ns of Mid-Atl., Inc. v. Town of Hanson, 311 F. Supp. 2d 142,
149-50 (D. Mass. 2004); Bachman, 659 F. Supp. at 310 (landowners did not possess legally
protectable interest in challenge to condominium construction because properties were not near
enough to one another); United States v. Hooker Chem. & Plastics Corp., 101 F.R.D. 444, 447
(W.D.N.Y. 1984) (state of Ontario had a legally protectable interest in litigation where landfill in
on its border with New York threatened its residents with potential contamination)
9

See e.g., WildEarth Guardians, 573 F.3d at 995-96 (owners of mine possessed
protectable, real-property interest under 24(a) in law suit under NEPA where environmental
group challenged the Forest Service’s approval of plan to vent methane gas from mining
operation); Mille Lacs Band of Chippewa Indians v. Minnesota, 989 F.2d 994, 997-98 (8th Cir.
1993) (landowners had interest in litigation where in action to determine if Native American
Tribe had hunting rights on land); Atlantis Dev. Corp. v. United States, 379 F.2d 818, 828-29
(5th Cir. 1967) (intervenor had interest in case between government and developer to stop
construction on coral reef where intervenor also claimed ownership of reef); United States v.
Martin, 267 F.2d 764, 768-69 (10th Cir. 1959) (intervenor-land owner possessed interest in
declaratory action by United States to determine rights of parties affected by water diversion
plan where the plan would affect the natural irrigation on his land); United States v. Schreiber,
150 F.R.D. 106, 108 (S.D. Ohio 1993) (tenants possessed interest in litigation where HUD
accused landlord of not properly maintaining the apartment building); Town of North Hempstead
v. Vill. of North Hills, 80 F.R.D. 714 (E.D.N.Y. 1978) (Owners of land permitted to intervene
where plaintiffs brought action against village to enforce compliance of certain federal
regulations that would change local zoning requirements for owners’ property).
15

whose property is touched by the current design would similarly have a right to intervene and
voice their approval or dissent. The Court does not believe that Rule 24(a)(2) intended to cast so
wide a net. In addition, while ITA may hold an interest in the Transpark property, it cannot be
said that it holds an interest in “the subject matter of the case,” which is whether the FHWA
abided by its rules and regulations in deciding to construct the Project. ITA did not conduct the
NEPA analysis and did not perform studies of the region’s topography or the environmental
impact of the Project. While ITA would like to see the Project constructed in its current form, it
had no measurable impact on the decision to proceed with its construction; sole discretion has
always rested with the FHWA. Consequently, this Court believes that the process and
procedures employed by the FHWA in deciding to build the Project are the “subject matter of the
litigation,” not the property the Project will intersect. Thus, simple ownership of the Transpark
does not translate into a legally protectable interest for ITA.
In their replies, the Movants mention three additional arguments in hope of joining this
litigation. They initially point to Section E of KEEP’s amended complaint, which lays out the
relief requested. In it, KEEP asks the Court to deny funding for the Project to the City and
County. In their responses, they declare that this relief is demonstrative of their substantial legal
interests, as KEEP “seeks to deprive [the City and County] of benefits FHWA is legally
authorized” to distribute to them. DN 19 at 3. This argument is unconvincing. KEEP’s claims
for relief seek only to forestall the completion of the Project, whether that is through denying
direct action by the FHWA or by preventing disbursement of funds to third parties to begin its
construction. The City and County do not have a legal or contractual right to this sum of money
designated to complete the Project; they simply have an expectancy considering FHWA’s past
decision to proceed with construction. The Movants further counter that as both landowners and
16

the representatives of their citizens, the interests they are seeking to protect are “significantly
greater” than those of KEEP’s members, as the latter are a simply a disparate group of
environmentalists. This contention ignores both the Court’s prior rulings that the Movants’
proffered interests to the litigation are only tangentially related to the current action as well as
the statutory reality that KEEP is permitted to bring this law suit according to the unambiguous
provisions of the APA and NEPA. See Friends of Tims Ford, 585 F.3d at 964. That Movants
may have a connection to the litigation does not in turn equate to an interest in it under Rule
24(a)(2).
For the last argument in their replies, Movants point to a recent decision from the Ninth
Circuit, Wilderness Society v. U.S. Forest Service, No. 09-35200, 2011 WL 117627, at *1 (9th
Cir. Jan. 14, 2011). There, the court of appeals repudiated its own “federal defendant rule,”
which until recently had barred all private parties from intervening as a matter of right in claims
brought under NEPA. Id. at *2. The rule and its variations have been the subject of much
judicial debate, as at least one circuit has chosen to follow the rule, see e.g., Wade, 673 F.2d at
186, while several others have specifically rejected it. See e.g., WildEarth Guardians, 573 F.3d
at 922; Kleissler, 157 F.3d at 974; Espy, 18 F.3d at 1208. To date, the Sixth Circuit has declined
to weigh in on this ongoing circuit split. See Friends of Tims Ford, 585 F.3d at 963 n. 1
(declining to decide whether a private party could intervene as a defendant in a NEPA action).
Movants now invite this Court to enter the fray by permitting them to intervene under Rule
24(a)(2), as “Wilderness Society reflects a sea change[]” in the jurisprudential landscape
surrounding the issue. DN 18 at 2. The Court declines to be swept up by Movants’ argument.
The Movants lack a protectable interest in the subject matter of the litigation and therefore
intervention under this provision of the federal rules is foreclosed. Thus, the Court does not
17

address whether the Sixth Circuit would permit a private party to intervene as a defendant under
NEPA.
Overall, the Movants do not have a legal, protectable interest premised on contractual or
real property rights. Nor are their economic or citizenry-protection interests directly jeopardized
by the current action. As the Movants are unable to demonstrate this factor under Rule 24(a)(2),
their intervention as a matter of right is inappropriate. See Michigan, 424 F.3d at 443 (with any
factor lacking, a party may not intervene under Rule 24(a)(2))
II. Permissive Intervention
The Movants declare that they are also entitled to permissive intervention. Rule 24(b)
describes that a party is permitted to intervene when, on a timely motion, the party “is given a
conditional right to intervene by a federal statute” or “has a claim or defense that shares with the
main action a common question of law or fact.” Fed. R. Civ. P. 24(b). In choosing to grant or
deny permissive intervention, not only is the trial court vested with broad discretion, Afro Am.
Patrolmen's League v. Duck, 503 F.2d 294, 298 (6th Cir. 1974), but it must also seek to guard
against any “undue[] delay or prejudice the adjudication of the rights of the original parties.”
Fed. R. Civ. P. 24(b)(3).
In rejecting this contention by Movants, the Court relies upon a number of factors, not
the least of which is that they do not have a recognized interest in the subject matter of the
litigation. See supra Section I. The trio also lacks a “claim or defense that shares with the main
action a common question of law or fact.” Fed. R. Civ. P. 24(b). Indeed, as they lack their own,
unique legal interest in the litigation, Movants can only offer general support of the FHWA and
the procedure it followed in rejecting the alternatives to the Project. Just as the overall desire to
have the Project completed is not a legally protectable interest upon which the Movants can rely,
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nor is it a claim or defense that would lead this Court to grant permissive intervention.
Even if the Movants did share a defense or claim with this main action, the Court is not
inclined to grant them permission to intervene. This action will confront exclusively whether the
FHWA complied with NEPA and how it received, analyzed, and interpreted a variety of data
when it ultimately decided upon the Project’s specifics. It promises to be a fact-intensive,
expert-driven matter that closely scrutinizes FHWA’s rationale for choosing the Orange-6
Alternative in lieu of the others possible construction scenarios set forth in the FEIS. To
combine Movant’s arguments about the future of the Transpark, their respective liabilities for the
outstanding bond issuance, and each’s opinion on the traffic problems surrounding the Corridor
would only serve to complicate an already difficult matter. For these reasons, the Court
exercises its broad discretion and chooses to deny Movants’ request to permissibly intervene.
III. Amicus Curiae
While the above-described decisions are an accurate interpretation of intervention under
Rule 24, the Court recognizes that whether the Project is completed or not represents an issue of
importance to the region and to the Movants. In the past, district courts have been given the
discretion to allow the participation of proposed intervenors in a proceeding as amicus curiae,
permitting these parties to detail their position to the Court through the submission of legal
briefs. See Miller, 103 F.3d at 1244; Bradley, 828 F.2d at 1194-95. This Court will thus grant
Movants’ motion for leave to file a brief as amicus curiae. This will allow them to provide the
Court with their targeted, local arguments in favor of the Project as well as address whatever
issues they may feel are implicated by the current litigation.
CONCLUSION
FOR THE FOREGOING REASONS:
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(1) The Movants’ motion to intervene as Defendants (DN 7) is DENIED. An appropriate
order shall issue.10
(2) The Movants’ motion for leave to file a brief as amicus curiae (DN 24) is
GRANTED. The clerk of court is directed to make the appropriate notation on the
docket by adding the Fiscal Court of Warren County, the City of Bowling Green, and the
Inter-Modal Transportation Authority as amicus curiae. Jointly, they may file a brief not
to exceed 40 pages on or before June 3, 2011, and they will be allowed to file a reply
brief consisting of 30 pages supporting Defendants’ cross-motion for summary judgment
on or before July 22, 2011.

April 14, 2011

10

An order denying a motion to intervene is a final and appealable order. See e.g.,
Bridgeport Guardians, Inc. v. Delmonte, 602 F.3d 469, 473 (2d. Cir. 2010); United States v.
Albert Inv. Co., 585 F.3d 1386, 1389 (10th Cir. 2009); United States v. Metro. St. Louis Sewer
Dist., 569 F.3d 829, 833 (8th Cir. 2009).
20