Vermonters for a Clean Environment, Inc. et al v. Madrid et al

Filing 37

MEMORANDUM AND ORDER: granting 25 Motion to Intervene by Deerfield Wind, LLC's, subject to the enumerated conditions set forth in this order. Signed by District Judge J. Garvan Murtha on 08/07/2012. (wjf)

UNITED STATES DISTRICT COURT
DISTRICT OF VERMONT
VERMONTERS FOR A CLEAN
ENVIRONMENT, INC., JUSTIN LINDHOLM,
ANNETTE SMITH, JOHN DAVID GEERY,
THOMAS E. SHEA, GEORGE S. HALFORD,
KATHY HALFORD, and TYLER RESCH,

:
:
:
:
:
:
Plaintiffs,
:
:
v.
:
:
COLLEEN MADRID, Forest Supervisor
:
of the Green Mountain National Forest,
:
BOB BAYER, Project Coordinator of the
:
Deerfield Wind Project, Manchester District,
:
and CHARLES L. MYERS, Regional Forester :
of the Eastern Region, in their official capacities :
as employees of the U.S.D.A. Forest Service,
:
:
Defendants.
:
_____________________________________ :

File No. 1:12-CV-73

MEMORANDUM AND ORDER
(Doc. 25)
I.

Introduction
Deerfield Wind, LLC moves to intervene as a defendant in this matter under Federal Rule

of Civil Procedure 24. (Doc. 25.) Plaintiffs Vermonters for a Clean Environment, Inc., Justin
Lindholm, Annette Smith, John David Geery, Thomas E. Shea, George S. Halford, Kathy
Halford, and Tyler Resch (collectively, “Plaintiffs”) oppose the motion. (Doc. 29.) Defendants
Colleen Madrid, Forest Supervisor of the Green Mountain National Forest, Bob Bayer, Project
Coordinator of the Deerfield Wind Project, and Charles L. Myers, Regional Forester of the
Eastern Region, all in their official capacities as employees of the U.S.D.A. Forest Service
(collectively, “Federal Defendants”) take no position on intervention by Deerfield Wind.

(Doc. 31.) In this action, Plaintiffs challenge a United States Forest Service decision to grant
Deerfield Wind a Special Use Permit for the occupancy and use of an area of the Green
Mountain National Forest where Deerfield plans to construct a wind farm.
For the following reasons, the Court grants the motion.
II.

Discussion
Deerfield Wind seeks intervention under Federal Rule of Civil Procedure 24(a) which

allows for intervention as of right where, on timely motion, a party:
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 impeded the movant’s ability to protect its interest, unless existing
parties adequately represent that interest.
Fed. R. Civ. P. 24(a)(2).1 In the alternative, Deerfield Wind seeks intervention under Federal
Rule of Civil Procedure 24(b) which allows for the permissive intervention of parties and
provides, in pertinent part, “[o]n timely motion, the court may permit anyone to intervene who
. . . has a claim or defense that shares with the main action a common question of law or fact.”
Id. 24(b)(1)(B). In addition, Rule 24(b) cautions, “[i]n exercising its discretion, the court must
consider whether the intervention will unduly delay or prejudice the adjudication of the original
parties’ rights.” Id. 24(b)(3).
The Second Circuit has interpreted Rule 24(a)(2) to require that a movant: “(1) timely
file an application, (2) show an interest in the action, (3) demonstrate that the interest may be
impaired by the disposition of the action, and (4) show that the interest is not protected

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Subsection (a)(1) provides for intervention as of right where a party “is given an
unconditional right to intervene by a federal statute.” Fed. R. Civ. P. 24(a)(1). Deerfield Wind
does not argue a federal statute gives it an unconditional right to intervene.
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adequately by the parties to the action.” United States v. City of New York, 198 F.3d 360, 364
(2d Cir. 1999). The Circuit has made clear that a motion for intervention “will be denied unless
all four requirements are met.” United States v. Pitney Bowes, Inc., 25 F.3d 66, 70 (2d Cir.
1994). The failure to satisfy any one of the requirements, therefore, is grounds for denial.
City of New York, 198 F.3d at 364.
Deerfield Wind asserts it has an interest relating to the subject of this action, it is situated
so that disposing of the action may as a practical matter impair or impede its ability to protect its
interest, and no existing party adequately represents its interest. Plaintiffs object to intervention
mainly asserting Deerfield Wind fails at the fourth prong of the test regarding adequate
representation. See Doc. 29. Federal Defendants do not oppose intervention but note they will
“adequately defend the decision of the Forest Service, and are able to represent the interests
relevant to that decision.” (Doc. 31 at 1.)
While Deerfield Wind moves under Rule 24(a), it also requests, in the alternative,
permissive intervention under Rule 24(b). As Plaintiffs note: “‘Permissive intervention is
wholly discretionary with the trial court.’” (Doc. 29 at 9 (quoting U.S. Postal Service v.
Brennan, 579 F.2d 188, 191 (2d Cir. 1978).) The Court recognizes Deerfield Wind makes a
strong argument under Rule 24(a), however, in its discretion, the court will decide the motion
under Rule 24(b).
Deerfield Wind’s motion to intervene is timely and will not unduly delay or prejudice
Plaintiffs. This case was filed less than four months ago, in April 2012, and is in the preliminary
stages. Deerfield Wind, as the holder of the challenged permit and entity proposing to build the
wind project at issue, has a claim or defense that shares with the main action a common question
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of law or fact. Additionally, Deerfield Wind has agreed to the following conditions requested by
the Federal Defendants:
(1)
(2)
(3)
(4)

Deerfield Wind is precluded from seeking discovery or the
supplementation of the administrative record.
Deerfield Wind is subject to the schedule approved by the Court (Doc. 26).
Deerfield Wind is prohibited from filing any independent claims against
the Federal Defendants in this action.
Each party must bear its costs and fees related to the participation of
Deerfield Wind in this matter.

Deerfield Wind, LLC’s participation as an intervenor defendant in this action is subject to the
above conditions. Accordingly, Plaintiffs’ fear that Deerfield Wind will be a “fifth wheel” in the
litigation (Doc. 29 at 9) should be allayed.
For the above reasons, and in the interest of judicial economy, the Court, in its discretion,
will allow Deerfield Wind, LLC to intervene.
III.

Conclusion
Deerfield Wind, LLC’s motion to intervene (Doc. 25) is GRANTED, subject to the

enumerated conditions set forth above.
SO ORDERED.
Dated at Brattleboro, in the District of Vermont, this 7th day of August, 2012.

/s/ J. Garvan Murtha
Honorable J. Garvan Murtha
United States District Judge

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