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United States v. Stringfellow

ELR Citation: 16 ELR 20458
Nos. No. 84-5682, 783 F.2d 821/24 ERC 1089/(9th Cir., 02/18/1986) Opinion issued

The court holds that residents of an area affected byf releases from a hazardous waste disposal site may intervene as of right under Federal Rule of Civil Procedure 24(a)(2) in a government action to force the site owner and waste generators and transporters to clean up the site. Concerned Neighbors in Action (CNA), a community organization formed to ensure adequate cleanup of the Stringfellow Acid Pits in California, seeks to intervene as of right even though a lower court granted them leave to intervene permissively. The court first rules that the denial of a motion to intervene as of right is a final order, even if movant was granted permissive intervention and participated in the litigation as long as it did not consent to the judgment of the lower court. Though CNA is involved in the litigation, the court below significantly restricted its participation. The court rules that it will review the denial of CNA's motion de novo. Noting that CNA's motion was timely and that the group has an undisputed interest in the subject of the litigation, the court holds that CNA satisfied the other two tests for Rule 24(a)(2) intervention as well. The court first rules that appellant's interests will be impaired if they are not allowed to intervene as of right since the stare decisis effect of a decision could preclude CNA from litigating its claims against the government. The present case has issues of law and fact, concerning causation of and liability for the hazardous substance releases, which would bear on the resolution of CNA's claims against any of the original parties. CNA seeks remedies different from those sought by plaintiffs, for example, health studies, and these remedies might not be given sufficient weight in the bargaining between the original parties and thus not be reflected in any remedial scheme established by the court or agreed to in a settlement. That CNA could pursue its special remedies in a subsequent action does not mean that its ability to assert these rights has not been impaired, since the latter action would be more burdensome.

The court next holds that the existing parties do not adequately represent appellant's interests. The court first rules that when the government is a party, the prospective intervenor need only meet the minimal burden of showing that the representation of its interests may be inadequate. The court below erroneously applied a more stringent test from another circuit. The court rules that a party with adverse interests can never adequately represent an intervenor's interest. As a result of counterclaims by defendants against plaintiffs, all the parties have some interests in common with CNA, but all likewise have interests adverse to CNA's. A contrary case cited by one of the parties is not dispositive, because there was no basis for claims against the government. CNA could conduct independent discovery that might expand the remedy agreed to, but there is a danger that the existing parties may not adequately represent CNA's arguments for fear of opening themselves up to greater liability. This creates the added danger that the original parties may bargain away the intervenor's interests. CNA has an interest in proceeding under joint and several liability, while both plaintiffs and defendants seek to limit application of that doctrine. Finally, the court adds in dicta that CNA probably is entitled to intervene as of right under Rule 24(a)(1) the amended Resource Conservation and Recovery Act citizen suit provision apparently grants such right.

Counsel for Plaintiff-Appellee
Anne S. Almy
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4427

Counsel for Defendants-Appellees
Frederick D. Woocher
Center of Law in the Public Interest
10951 W. Pico Blvd., Los Angeles CA 90064
(213) 470-3000