Sierra Club v. Morton

No. 51464 (N.D. Cal. February 6, 1973)

The Court denies the motion of Tulare County to intervene as a party defendant in a suit to restrain a recreational development in the Mineral King Area of Sequoia National Park. The court holds that under Fed. R. Civ. P. 24(a)(2) the County asserts no real interest in the case when it seeks to improve the tax base or to foster responsible land use within its boundaries. The issue in the case is not whether the area should be developed but whether federal officials have abused their discretion or have failed to comply with applicable statutes. The Court also holds that the County's interests will be adequately represented by the defendants and that County should not be allowed permissive intervention under Fed. R. Civ. P. 24(b)(2), because County's interests do not involve directly the factual and legal issues of the case and would only add to the delays in the litigation. See previous decisions in this litigation at 1 ELR 20010, 1 ELR 20015, 2 ELR 20192, 2 ELR 20469, 2 ELR 20576.

Counsel for Plaintiff
James Moorman
Sierra Club Legal Defense Fund, Inc.
311 California Street, Suite 311
San Francisco, California 94104

Counsel for Applicant, County of Tulare
E. Lewis Reid
Steinhart, Goldberg, Feigenbaum & Ladar
1 Post Street
San Francisco, California 94104

[3 ELR 20174]

Sweigert, J.

This is an action brought by the Sierra Club and certain individuals to restrain the development of the so-called Mineral King area of Sequoia National Forest by Walt Disney Productions, Inc., which intends to construct and maintain a recreational complex there under permits granted by the Forest Service of the Department of Agriculture.

Plaintiffs' essential claims are that defendants, who are officials of the Departments of Agriculture and of the Interior, have abused their administrative discretion and have violated certain statutory and regulatory provisions in connection with the proposed issuance of the above permits, and have approved the project without prior compliance with the National Environmental Policy Act, 42 U.S.C. 4331, et seq.

The action is now before the court on the motion of Tulare County for leave to intervene as a party defendant. The County contends that Mineral King's location within its boundaries gives it a sufficient interest in this litigation which is not adequately represented by the parties to the action so as to entitle it to intervention of right under FRCP 24(a)(2).

Rule 24(a)(2) provides as follows:

"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."

Tulare County contends that it has an "economic" interest in the outcome of this litigation, since development of the Mineral King area would increase the County's tax base; that it has an "aesthetic" or "recreational" interest by virtue of its general governmental obligation to foster responsible land use and recreational development within its boundaries, and that these interests are not adequately represented by existing parties to this action, since plaintiffs are opposed to any economic development of Mineral King and defendants are faced with a number of other "environmental" lawsuits - a factor that might influence defendants' litigation strategy.¹

Although the 1966 amendment to Rule 24(a)(2) has liberalized the "res judicata" approach under the earlier version of the rule (which required an applicant to show that he might be "bound" by a judgment in the action, see Moore, Federal Practice, vol. 3B, para. 24.09-1[2]), the rule still requires a showing that the applicant has some "interest" in the subject matter of the action; that the applicant's absence from the action would as a practical matter impair or impede protection of that interest; and that the applicant's interest is not adequately protected by existing parties. See, Edmonson v. State of Nebraska, 383 F.2d 123, 126 (8th Cir. 1967).

The County bases its contention that it has an "interest" in the litigation on the assumption that the subject matter of this action is the Mineral King area itself. Although the outcome of this litigation may have an effect on the future condition of the area, the issue in this case is, not whether Mineral King should or should not be developed, but rather, whether the defendant federal officials have abused their administrative discretion, or, have failed to comply with applicable statutes or regulations.

Given this context of the action, any incidental fiscal or landuse planning benefit that might inure to the County, should defendants ultimately prevail, is, in our view, too remote an "interest" to give the County the right to exercise control over the course of this litigation by intervention.

We are not persuaded that the County's asserted interests will not be adequately represented in this action, or, that these interests would be prejudiced by virtue of the County's absence as a party. Any incidental fiscal or other general benefits the County might derive, should defendants prevail, are not such as to place it in any different position than defendants on the legal and factual issues presented in this action. Absent any showing to the contrary, and none has been made, we can presume that the defendants will competently and vigorously defend the action. The only real assertion of inadequate representation made by the County stems from its disagreement, both present and anticipated, with the defendants' strategy in conducting the lawsuit. In our view, this does not amount to inadequate representation within the meaning of the rule.

Nor should the County be allowed "permissive intervention" under FRCP 24(b)(2).

Rule 24(b)(2) provides, in pertinent part, that:

"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."

The practical considerations of judicial economy which underlie the rule (See, Moore, Federal Practice, vol. 3B para. 24.10[1]) would not be served by allowing Tulare County to intervene in this action. As already indicated, the County's asserted interests do not involve it directly in the factual and legal issues in this litigation. Nor does the County have any legal claim based on these interests that might be the subject of future proceedings. Nor will the County find itself in the position of defending claims arising from similar facts in another action. Added to this is the fact that intervention at this late date would add to the delays that have already occurred in this litigation.

Accordingly, it is the order of this court that the motion of Tulare County for leave to intervene should be, and the same is hereby, denied, provided that the County shall have the right to file briefs and to appear before the court as amicus curiae in connection with all proceedings before the court, if it so desires, and, further, that the County shall be served with copies of all notices, pleadings and any other documents filed in this action as if it were a party to the action.

1. By way of illustration the County points out that defendants here have substantially delayed final resolution of the merits by taking protracted interlocutory appeals on the issue of standing.