California ex rel. Van de Kamp v. Tahoe Regional Planning Agency

No. 84-2633 (9th Cir. June 20, 1986)

The court upholds the district court's decision to deny landowners and elected officials of the Tahoe Basin area intervention in a suit by California to challenge the adequacy of a plan by the Tahoe Regional Planning Agency to achieve certain environmental goals under the California-Nevada Tahoe Regional Planning Compact. The court first holds that landowners may not intervene as a matter of right under Federal Rule of Civil Procedure (FRCP) 24(a)(2). The landowners could allege only incidental, rather than the required direct effects on their property as a result of the plan, and could not allege a particular use of their land which would be impeded by the plan. The court also holds that the landowners' status as public officials does not create any greater interest in intervention, since they did not show that the outcome of the litigation would directly affect their duties under state law. The court then holds that the applicants are not entitled to permissive intervention under FRCP 24(b)(2) because no common question of law or fact was presented.

[A related case appears at 16 ELR 20909.]

Counsel for Plaintiffs-Appellees
John K. Van de Kamp, Attorney General; N. Gregory Taylor, Ass't Attorney General
Department of Justice, 1515 K St., Suite 511, Sacramento CA 95814
(916) 324-5437

Counsel for Defendant-Appellee
Louis R. Doescher
Shaw, Heaton, Doescher & Owen, Ltd.
304 S. Minnesota St., P.O. Box 605, Carson City NV 89701
(702) 882-2164

Counsel for Intervention Applicants/Appellants
George W. Abbott
P.O. Box 98, Minden NV 89423
(702) 782-2302

Before SCHROEDER, CANBY, and BOOCHEVER, Circuit Judges.

[16 ELR 20908]

PER CURIAM:

Nathaniel Hellman, Louis Bergevin, and Robert Pruett appeal the district court's order denying their motion to intervene in a suit by California against the Tahoe Regional Planning Agency (TRPA).

The California Attorney General and the State of California filed the underlying district court suit against TRPA in 1984, challenging TRPA's regional plan for achieving specified environmental goals. TRPA developed the plan pursuant to the California-Nevada Tahoe Regional Planning Compact, Pub.L. 96-551, 94 Stat. 3233. The plaintiffs claim that TRPA's regional plan violates that Compact. Their complaint requests a declaration of the invalidity of TRPA's planning actions and an injunction preventing TRPA from approving any further development or construction. See People of California v. Tahoe Regional Planning Agency, 766 F.2d 1308 (9th Cir. 1985) (discussing background of this litigation and upholding a preliminary injunction); see also People of California v. Tahoe Regional Planning Agency, 792 F.2d 775 (9th Cir.1986).

Hellman, Bergevin, and Pruett seek to intervene in this action. They own property in the Tahoe Basin and in Douglas County, Nevada. Pruett is also the Chairman of the Douglas County Board of Commissioners, and is Douglas County's delegate to TRPA's governing board. Bergevin is a Nevada assemblyman from Douglas County. They seek to intervene to challenge the district court's jurisdiction to hear the suit and to argue that TRPA is no longer legally constituted because its authority to act expired in 1983 when it failed to adopt a timely regional plan.

The district court denied the motion to intervene, concluding that the applicants failed to meet the requirements for intervention of right. The court also denied the applicants' motion for permissive intervention because they did not assert a question of law or fact in common with the pending suit. We affirm.

We review de novo a district court's denial of intervention as of right. United States v. Stringfellow, 783 F.2d 821, 825 (9th Cir.1986); see also Sagebrush Rebellion, Inc. v. Watt, 713 F.2d 525, 527-29 (9th Cir.1983). Federal Rule of Civil Procedure 24(a)(2) provides:

(a) Intervention of right. Upon timely application anyone shall be permitted to intervene in an action: . . . (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.

This circuit applies a four-part test to evaluate claims for intervention as of right under Rule 24(a)(2). First, the applicant's motion must be timely; second, the applicant must assert an interest relating to the property or transaction which is the subject of the action; third, the applicant must be so situated that without intervention the disposition of the action may, as a practical matter, impair or impede his ability to protect that interest; and fourth, the applicant's interest must be inadequately represented by the other parties. Stringfellow, 783 F.2d at 826; Sagebrush Rebellion, 713 F.2d at 527; Wade v. Goldschmidt, 673 F.2d 182, 185 (7th Cir.1982). Because we conclude that the applicants cannot satisfy the second element, which requires an interest relating to the subject of the action, we do not reach the remaining elements of the test.

Hellman, Bergevin, and Pruett are property owners who allege at most incidental, rather than direct effects upon their land as a result of the Plan. They allege no projected use of their land which might be impeded by the Plan. We hold that their interest is insufficient to compel their intervention under Rule 24(a)(2).

We rejected a claim for intervention under similar circumstances in Westlands Water District v. United States, 700 F.2d 561 (9th Cir.1983). In Westlands, we held that the Environmental Defense Fund's interest in water quality did not entitle it to intervene in an action brought by a local water district against the United States concerning contracts between the parties respecting the delivery of the water. We observed that to the extent the Fund had an interest in water exportation, it was a general interest in water distribution shared by a substantial portion of the population of Northern California, rather than an interest in the water contracts under dispute in the subject litigation. They accordingly had no right to intervene. Id. at 563. See also Wade v. Goldschmidt, 673 F.2d 182, 185 (7th Cir.1982) (Insufficient interest to intervene where none of the actions or statutes at issue involved the applicants for intervention).

Bergevin and Pruett's status as elected officials is also insufficient to support their application for intervention. See Blake v. Pallan, 554 F.2d 947, 953 (9th Cir.1977) (holding that the federal court's interpretation of state law creates an insufficient interest to allow a state official to intervene). Bergevin and Pruett have alleged no interest in intervening as public officials, other than their general desire to ascertain the legal status of TRPA. They have not shown that any decision in this action "will directly affect [their] own [16 ELR 20909] duties and powers under the state laws." Blake, 554 F.2d at 953.

The applicants also seek intervention under Rule 24(b)(2), which provides for permissive intervention:

(b) Permissive intervention. Upon timely application anyone may be permitted to intervene in an action: . . . (2) When an applicant's claim or defense and the main action have a question of law or fact in common. . . . In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.

We review the district court's denial of the motion for permissive intervention to determine whether the district court abused its discretion. Hawaii Pacific Venture Capital Corp. v. Rothbard, 564 F.2d 1343, 1346 (9th Cir.1977). The district court did not abuse its discretion in concluding that the applicants did not assert a common question of law or fact. The legal and factual issues they raised were foreign to those presented in the action.

Affirmed.