United States, et al v. City of Baton Rouge, et al

Filing 36

RULING granting 24 Second Motion to Intervene of Concerned Citizens of University Place Subdivision and Louisiana Environmental Action Network. Signed by Magistrate Judge Stephen C. Riedlinger on 4/19/2012. (JDL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

UNITED STATES OF AMERICA, ET AL

CIVIL ACTION

VERSUS

NO. 01-978-BAJ-SCR

CITY OF BATON ROUGE AND
PARISH OF EAST BATON ROUGE

RULING ON SECOND MOTION TO INTERVENE
Before

the

court

is

the

Second

Motion

to

Intervene

of

Concerned Citizens of University Place Subdivision and Louisiana
Environmental Action Network.

Record document number 24.

The

motion is opposed by both plaintiff United States of America and
defendants City of Baton Rouge and the Parish of East Baton Rouge.1
The details of the history of this case do not need to be
repeated to rule on this motion. Briefly, the parties entered into
a Consent Decree, which was approved by the court in 2002.2

The

Consent Decree required the defendants to take certain actions to
remedy violations of the federal Clean Water Act (“CWA”), undertake
a comprehensive remedial action program, and comply with the CWA
and the National Pollution Discharge Elimination System (“NPDES”).
The

deadline

for

completion

of

1

the

sanitary

sewer

system

Record document numbers 30, opposition by defendants; record
document number 33, opposition by plaintiff USA.
2

Record document number 11.

improvements is January 1, 2015.

The Consent Decree was modified,

again with court approval, in 2009.3

The parties now have proposed

another modification of the Consent Decree, the Second Consent
Decree Modification (“Second Modification”).4

The proposed Second

Modification postpones completion of some projects, characterized
by plaintiff USA as “lower priority projects,” until January 1,
2018, and makes other changes to the Consent Decree.
Proposed intervenors first motion was denied because their
motion did not state whether they have the authority to sue and/or
be sued.5

Their second motion to intervene fully explains their

authority to sue, and neither plaintiff USA nor the defendants
challenge their procedural capacity.
and

the

defendants’

primary

Rather, both plaintiff USA’s

argument

is

that

the

proposed

intervention is untimely.
Rule 24, Fed.R.Civ.P., provides, in relevant part, as follows:
(a) Intervention of Right. On timely motion, the
court must permit anyone to intervene who:
(1) is given an unconditional right to intervene
by a federal statute;
As the proposed intervenors explained,6 and plaintiff USA

3

Record document number 19.

4

Record document numbers 20 and 22.

5

Record document number 23.

6

Record document number 24, p. 4; record document number 24(continued...)
2

conceded,7 the proposed intervenors have a statutory unconditional
right to intervene provided under 33 U.S.C. § 1365(b)(1)(B).

The

pertinent issue is whether the proposed intervention is timely.
A careful review of the record of this case demonstrates that
the motion is timely.

The proposed intervention is timely because

the parties are now seeking another modification of the Consent
Decree, which modification, if approved, will further delay the
defendants’ full compliance with the Consent Decree.

As explained

in the motion, the need to intervene arises from the failure of the
plaintiffs to enforce compliance with the terms of the Consent
Decree, and the failure to bring enforcement actions against the
defendants for repeated violations of the Consent Decree.8
“Although the primary responsibility for enforcement [of the
CWA] rests with the state and federal governments, private citizens
6

(...continued)
5, p. 2.
7

Record document number 33, p. 14-15 (“The United States does
not dispute that, with regard to the proposed Second Consent Decree
Modification, Proposed-Intervenors have a qualifying right under
the CWA. Section 505(b)(1)(B), 33 U.S.C. § 1365((b)(1)(B). By way
of clarification, the United States’ objection to intervention
based on the First Amended Complaint in Intervention is based on
timeliness grounds.” (case citation omitted)).
8

See, Sierra Club v. Hamilton County Bd. of Commissioners,
504 F.3d 634 (6th Cir. 2004)(Sierra Club, viewed as intervenor as
a result of consolidated actions, based complaint on allegations
that government plaintiff failed to diligently prosecute on-going
violations during ten-year period and proposed to consent to
settlement inadequate to remedy failures of the previous decade).
3

provide a second level of enforcement and can serve as a check to
ensure

the

state

and

federal

governments

are

diligent

in

prosecuting Clean Water Act violations.” Sierra Club, 504 F.3d at
637 (6th Cir. 2007)(suit brought under § 1365(a)).
Insofar as plaintiff USA and the defendants argued that the
the motion should be denied as untimely because the proposed
intervenors seek relief in the form of “[r]eopening the failed 2002
Consent Decree,” an opportunity for discovery and to enter into a
different settlement, or a trial if necessary, their argument is
unpersuasive.

This form of relief is contained in one sentence in

the “RELIEF” section of the proposed First Amended Complaint in
Intervention.

That section also contains four other significant

forms of relief sought by the proposed intervenors, principally an
injunction compelling the defendants to comply with the CWA, civil
penalties for violations of the CWA, and attorney’s fees.

Of

course, whether any of this relief sought is appropriate would
necessarily have to await further proceedings in the case.

The

critical distinction between this case and those relied upon by
plaintiff USA is that the proposed intervenors are not seeking to
intervene because they disagree with the terms of the original
Consent Decree, or even with the first Consent Decree modification.
It is apparent that the reason for seeking to intervene is because
the parties are now proposing a significant modification of the
4

Consent Decree, and because the intervenors perceive that the
plaintiffs are not aggressively enforcing the existing Consent
Decree and are permitting violation of the CWA to go unabated.
Plaintiff USA also argued that the proposed intervenors do not
have a legally protectable interest required for intervention under
Rule

24(a)(2),

as

this

court

previously

determined

when

it

dismissed Louisiana Environmental Action Network v. City of Baton
Rouge; Parish of East Baton Rouge, CV 10-187-BAJ-SCR.9
This argument is unavailing.

First, it is not necessary to

address whether intervention under Rule 24(a)(2) is proper since
the proposed intervenors have a statutory right to intervene, as
explained above.

Second, the dismissal of the complaint in CV 10-

187 has been reversed by the Fifth Circuit Court of Appeal.10
Plaintiff

USA

also

made

intervention with conditions.

an

alternative

proposal

for

an

Specifically, plaintiff USA offered

a limited intervention, as follows:
9

Record document number 25 in CV 10-187.

10

Louisiana Environmental Action Network v. City of Baton
Rouge; Parish of East Baton Rouge, No. 11-30549, April 17, 2012.
This decision was issued after plaintiff USA filed its motion for
reconsideration of the now-vacated order which had granted this
Second Motion to Intervene. Plaintiff USA’s opposition memorandum
was submitted with its motion for reconsideration and was
subsequently filed as a separate document the same day as the
appellate court decision. Record document number 29, motion for
reconsideration; record document number 32, Ruling and Order
granting motion for reconsideration; record document number 33,
plaintiff USA’s opposition memorandum.
5

for the purpose of responding to any Motion to Enter [the
modified Consent Decree] that is filed and presenting, as
part of that brief, any relevant, additional information
not already in the comments [received from the public].
... the proposed intervention would be limited to
opposing the proposed-modification, that there would be
no discovery, and that no party would request an
evidentiary hearing.11
This is just an offer to let the proposed intervenors file a
memorandum, and perhaps present oral argument should the court
request it.

This limited intervention would not allow access to

the

which

facts

the

parties

believe

support

the

Second

Modification, nor even allow the proposed intervenors to ask the
court to hold an hearing so the parties can present the evidence
supporting the requested Second Modification. In the circumstances
of this case, this is not a meaningful intervention, and it is not
surprising that the proposed intervenors rejected this offer.
There no doubt that plaintiff USA, and likely the defendants,
too, genuinely believe that the proposed intervenors do not need to
become parties to this case. Nonetheless, a statute enacted by the
Congress of the United States gives them the unconditional right to
intervene,

and

their

motion

to

intervene

is

timely

in

the

circumstances of this case.
Accordingly, the Second Motion to Intervene of Concerned
Citizens

11

of

University

Place

Subdivision

and

Louisiana

Record document number 33, pp. 28, 131-33, Exhibit D.
6

Environmental Action Network is granted.
Baton Rouge, Louisiana, April 19, 2012.

STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE

7