Richland/Wilkin Joint Powers Authority v. United States Army Corps of Engineers et al

Filing 275

MEMORANDUM OPINION AND ORDER granting 243 Motion to Intervene (Written Opinion). Signed by Chief Judge John R. Tunheim on July 8, 2015. (HAZ)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
RICHLAND/WILKIN JOINT POWERS
AUTHORITY,

Civil No. 13-2262 (JRT/LIB)

Plaintiff,
v.
UNITED STATES ARMY CORPS OF
ENGINEERS, JOHN MCHUGH, JOELLEN DARCY, and DAN KOPROWSKI,
Defendants,

MEMORANDUM OPINION
AND ORDER GRANTING
MOTION TO INTERVENE

v.
FARGO-MOORHEAD FLOOD
DIVERSION BOARD OF AUTHORITY,
Intervenor Defendant.
Gerald W. Von Korff, RINKE NOONAN, P.O. Box 1497, St. Cloud, MN
56302, for plaintiff.
Carol Lee Draper, UNITED STATES DEPARTMENT OF JUSTICE,
601 D Street NW, Room 3106, Washington DC 20579; Friedrich A. P.
Siekert, Assistant United States Attorney, UNITED STATES
ATTORNEY’S OFFICE, 600 United States Courthouse, 300 South
Fourth Street, Minneapolis, MN 55415, for defendants.
Robert E. Cattanach and Michael R. Drysdale, DORSEY & WHITNEY
LLP, 50 South Sixth Street, Suite 1500, Minneapolis, MN 55402, for
intervenor defendant.
Jill S. Nguyen, Assistant Attorney General, MINNESOTA ATTORNEY
GENERAL’S OFFICE, 445 Minnesota Street, Suite 1800, St. Paul, MN
55101, for amicus curiae Minnesota Department of Natural Resources.
Matthew A. Sagsveen, Assistant Attorney General, NORTH DAKOTA
ATTORNEY GENERAL’S OFFICE, 500 North Ninth Street, Bismarck,
ND 58501, for amicus curiae State of North Dakota.
Joseph A. Turman and Katrina A. Turman Lang, TURMAN & LANG,
LTD, P.O. Box 110, Fargo, ND 58107, for movant City of Oxbow.

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The City of Oxbow (“Oxbow”) moves to intervene in this case as a defendant,
under both Federal Rules of Civil Procedure 24(a)(2) and 24(b)(1)(B). The intervenordefendant Fargo-Moorhead Flood Diversion Board of Authority (“Authority”) supports
Oxbow’s motion, while the plaintiff Richland/Wilkin Joint Powers Authority (“JPA”)
opposes the motion.
Rule 24(a)(2), which provides for intervention of right, states that:
On timely motion, the court must permit anyone to intervene who:
...
(2) 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). Rule 24 is construed “liberally” and courts “resolve any doubts
in favor of the proposed intervenors.” United States v. Ritchie Special Credit Invs., Ltd.,
620 F.3d 824, 832 (8th Cir. 2010) (Ritchie) (internal quotation marks omitted).

I.

STANDING
First, a party seeking to intervene must establish Article III standing. 1 United

States v. Metro. St. Louis Sewer Dist., 569 F.3d 829, 833 (8th Cir. 2009) (Metro

1

There is no dispute as to the Court’s assertion of federal question jurisdiction over the
JPA’s federal claims and supplemental jurisdiction over the JPA’s state claims. As a result,
since this case does not involve diversity jurisdiction, the Court need not consider the citizenship
of the intervening party. See generally Westra Constr., Inc. v. U.S. Fid. & Guar. Co., 546
F. Supp. 2d 194, 197 (M.D. Pa. 2008); 7C Fed. Prac. & Proc. Civ. § 1917 (3d ed.) (“[Th]e need
for independent jurisdictional grounds is almost entirely a problem of diversity litigation. In
federal-question cases there should be no problem of jurisdiction with regard to an intervening
(Footnote continued on next page.)

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St. Louis); South Dakota v. Ubbelohde, 330 F.3d 1014, 1023 (8th Cir. 2003); see also Am.
Horse Prot. Ass’n, Inc. v. Veneman, 200 F.R.D. 153, 156 (D.D.C. 2001) (noting that a
party seeking to intervene as a defendant, instead of a plaintiff, must still show the
equivalent of constitutional standing). To show standing, a party “must clearly allege
facts showing an injury in fact, which is an injury to a legally protected interest that is
‘concrete, particularized, and either actual or imminent.’” Metro St. Louis, 569 F.3d at
833-34 (quoting Curry v. Regents of Univ. of Minn., 167 F.3d 420, 422 (8th Cir. 1999)).
The party must also demonstrate “that the alleged injury is fairly traceable to the
defendant’s conduct and that a favorable decision will likely redress the injury.” Id. at
834.
Here, there is no dispute that Oxbow has standing. Oxbow alleges that the JPA’s
lawsuit, in particular the injunction the JPA sought and this Court granted, increases the
risk that Oxbow will be subjected – unprotected – to destructive floods, and destabilizes
and decreases Oxbow property values. (Decl. of James E. Nyhof (“Nyhof Decl.”) ¶¶ 212, June 26, 2015, Docket No. 245.) By joining the action, Oxbow alleges that, at a
minimum, it would be redressed by a favorable response to its efforts to clarify the scope
of the injunction. These allegations are sufficient to support the conclusion that Oxbow
has standing. See Ubbelohde, 330 F.3d at 1024-25.

____________________________________
(Footnote continued.)

defendant nor is there any problem when one seeking to intervene as a plaintiff relies on the
same federal statute as does the original plaintiff.”).

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II.

TIMELINESS OF MOTION, OXBOW’S INTEREST IN THE
LITIGATION, AND EXTENT TO WHICH OXBOW’S INTEREST IS
PROTECTED BY EXISTING PARTIES
Second, a party is entitled to intervene as a matter of right if the party’s motion is

timely and if “(1) [it] has a cognizable interest in the subject matter of the litigation,
(2) the interest may be impaired as a result of the litigation, and (3) the interest is not
adequately protected by the existing parties to the litigation.” Med. Liab. Mut. Ins. Co. v.
Alan Curtis LLC, 485 F.3d 1006, 1008 (8th Cir. 2007). The parties do not appear to
dispute, to any significant degree, that Oxbow has a cognizable interest in the subject
matter of this case (i.e., the construction of the Oxbow, Hickson, Bakke (“OHB”) Ring
Levee itself, the construction on related projects (e.g., relocation of private houses), and
the effect of the injunction – which has effectively barred all of that construction), or that
Oxbow’s interest is being impaired as a result of the injunction. (See, e.g., Nyhof Decl.
¶¶ 2-12; see also JPA Mem. in Opp’n to Oxbow’s Mot. to Intervene at 10-14, July 2,
2015, Docket No. 265.) For similar reasons to those that underlie the Court’s decision
regarding standing, the Court concludes Oxbow has shown that it has a cognizable
interest in this litigation and that its interest may be impaired as a result of the litigation.
See Ubbelohde, 330 F.3d at 1025.
The JPA argues instead that Oxbow’s motion is untimely and that its interests are
represented adequately by the Authority. As to the first issue, whether “a motion to
intervene is timely is determined by considering all the circumstances of the case.”
Ritchie, 620 F.3d at 832 (internal quotation marks omitted). Courts consider specific
factors in making this determination, including (1) how far the case has progressed at the

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time of the motion; (2) the movant’s prior knowledge of the pending action; (3) any
reason or excuse for delay in seeking intervention; and (4) the likelihood of prejudice to
the parties if the Court grants the motion. Id.
Here, it is undisputed that Oxbow had prior knowledge of this case; indeed,
Oxbow’s mayor provided declarations in earlier stages of the case. (See, e.g., Decl. of
James E. Nyhof in Support of Defs.’ Mot. for Anti-Suit Inj., June 19, 2014, Docket
No. 58.)

Moreover, this action has been pending for almost two years, and the

preliminary injunction motion at issue – which specifically sought to enjoy construction
on the OHB Ring Levee in and around Oxbow – was filed months ago, on February 11,
2015. (Mot. for Prelim. Inj., Feb. 11, 2015, Docket No. 122.) Nevertheless, the case has
not progressed far. The Court has granted the JPA’s injunction motion, and the JPA has
filed a motion for summary judgment, but little discovery has occurred. Moreover, as the
Authority points out, there is reason for the delay; while the Authority may have been
able to represent Oxbow adequately in the earlier stages of the litigation, Oxbow is now
in the best position to seek clarification regarding the injunction’s scope that will benefit
its residents. Indeed, the Authority and Oxbow are parties to different contracts and may
have different interests in seeking clarification of the Court’s injunction.

(See

Authority’s Mem. in Support of Oxbow’s Mot. to Intervene at 2-3 (“Authority’s
Intervention Mem.”), July 2, 2015, Docket No. 263.) In addition, there is no evidence
that the JPA, or any party, will be prejudiced by allowing Oxbow to intervene. See In re
Lutheran Bhd. Variable Ins. Prods. Co. Sales Practices Litig., No. 99-1309, 2002 WL

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31371945, at *3 (D. Minn. Oct. 7, 2002). As a result, the Court concludes Oxbow’s
motion is timely.
The JPA also contends that the Authority is adequately representing Oxbow’s
interests. But, the burden on Oxbow to show that it is better suited to represent its own
interests is not a stringent one and, as noted above, there are at least some differences
between the Authority’s interest in seeking clarification of the Court’s injunction and
Oxbow’s. See Sierra Club v. Robertson, 960 F.2d 83, 85-86 (8th Cir. 1992) (“The
‘inadequate representation’ condition is satisfied if the proposed intervenor shows that
the representation of its interests by the current party or parties to the action ‘may be’
inadequate.” (quoting Trbovich v. United Mine Workers, 404 U.S. 528, 538 n.10 (1972)).
As a result, the Court concludes that Oxbow has made a sufficient showing that its
interests are not being adequately represented by the Authority. In sum, especially in
light of the fact that any doubts regarding an intervention motion are to be construed in
favor of intervention, the Court concludes Oxbow has met its burden under Rule 24(a)(2)
and will grant Oxbow’s motion to intervene. See id. at 86 (“Doubts regarding the
propriety of permitting intervention should be resolved in favor of allowing it, because
this serves the judicial system’s interest in resolving all related controversies in a single
action.”).

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ORDER
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that Oxbow’s Motion to Intervene [Docket No. 243] is
GRANTED.
Additionally, Oxbow is ordered to file its response to the Authority’s Motion to
Clarify the Preliminary Injunction [Docket No. 252] within seven (7) days of the date of
this Order.

DATED: July 8, 2015
at Minneapolis, Minnesota.

___________
__________
JOHN R. TUNHEIM
Chief Judge
United States District Court

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