Deltona Corporation v. Hoffmann

No. 76-473 (M.D. Fla. January 20, 1977)

The court grants the motions of four environmental groups to intervene as defendants as a matter of right under Federal Rule of Civil Procedure 24(a)(2) in a suit challenging the denial of permit applications for dredging and filling mangrove swamps in Marco Island, Florida. Members of these four groups use the wetlands in question and the marine ecosystem of which they are a part for research, wildlife observation, and fishing, interests that are protected by the Federal Water Pollution Control Act Amendments of 1972 and the Rivers and Harbors Act of 1899. If the relief sought by plaintiff in this action is granted and dredging is permitted, intervenors' interests will be substantially and irrevocably injured. The four environmental groups participated as party opponents to the permit applicant in the administrative proceedings below, while the defendant agency merely acted as an arbiter receiving evidence from both sides before making a final decision. These organizations are thus in better position to take an advocate's role in presenting evidence to this court on the complex scientific questions at issue. The court holds that the environmental groups have also satisfied the requirements of Rule 24(b) for permissive intervention in this case and concludes that intervention will not unduly delay or prejudice the adjudication of the rights of the original parties.

Counsel for Plaintiff
L. Grant Peeples, William L. Earl, Robert H. Blank
Peeples, Earl & Blank
One Biscayne Tower, Suite 3636, Two South Biscayne Blvd., Miami FL 33131
(305) 358-3000

Counsel for Federal Defendants
John L. Briggs, U.S. Attorney; Robert S. Yerkes, Ass't U.S. Attorney
P.O. Box 600, Jacksonville FL 32201
(904) 791-2682

Fred R. Disheroon
Department of Justice
Washington DC 20530
(202) 737-8200

Counsel for Intervening Defendants
Kenneth F. Hoffman
Rogers, Bailey, Jones & Gay
Florida Title Bldg., Jacksonville FL 32202
(904) 356-3911

Edward Thompson, Jr., William A. Butler, James T. B. Tripp
Environmental Defense Fund, Inc.
1525 18th St., NW, Washington DC 20036
(202) 833-1484

[7 ELR 20224]

Schlesinger, U.S. Magistrate:

Order

This action arises out of an administrative decision by the Corps of Engineers to deny plaintiff's applications for permission to dredge and fill approximately 2,200 acres of mangrove wetlands near Marco Island, Collier County, Florida. This suit involves questions under the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq., and the Rivers and Harbors Act of 1899, 33 U.S.C. § 401 et seq.

Plaintiff, The Deltona Corporation, has instituted this action to determine the legality and constitutionality of the Corps of Engineers' denial of the dredge and fill permit applications.

The Environmental Defense Fund, Inc., the National Audubon Society, Inc., the Florida Audubon Society, Inc., and the Collier County Conservancy, Inc., seek to intervene in this action as defendants pursuant to Rule 24(a)(2) or Rule 24(b) of the Federal Rules of Civil Procedure. Each of these groups are nonprofit corporations existing for the purpose of promoting the conservation of wildlife and the protection of environmentally sensitive lands. They also exist for the purpose of fostering protection and wise management of the environment, and for the purpose of acquiring environmentally sensitive lands, public education, research, and supporting long range planning to prevent pollution and the unwise use of lands.

The National Audubon Society owns the Rookery Bay Sanctuary located three to ten miles from Marco Island. They assert that if the relief requested is granted, it would adversely affect this area by the loss of regional fishery productivity, diminution of the quality of contiguous waters, and a loss of feeding ground for bird species that inhabit the Sanctuary.

The Collier County Conservancy operates the Rookery Bay Marine Research Station located within the boundaries of the Rookery Bay Sanctuary. They assert that if the relief sought is granted it will cause a loss of fishing opportunities, and a disruption of the marine ecosystem under study at the Research Station.

Members of all the applicant organizations use the wetlands in question for various legitimate purposes, including but not limited to research, wildlife observation, and fishing. The members of all four applicant organizations would be adversely affected by any disruption to the marine ecosystem of which the wetlands in question are a part. The applicant organizations have an interest in the wetlands herein in question by virtue of their members' use thereof. The applicant organizations have a further interest in the wetlands herein in question by virtue of their members use of the marine ecosystem of which the wetlands herein in question are merely a part. These interests in the environment are protected by the Federal Water Pollution Control Act and the Rivers and Harbors Act of 1899. Their interest is, thus, direct and substantial and within the protection of the law.

If the relief sought is granted, the plaintiff would be entitled to dredge and fill the wetlands in question. This would have a substantial impact on the wildlife and the marine ecosystem in question. Wildlife would be eliminated and fishing and fisheries would be affected to an extent that the change in their natural character would perhaps foreclose the opportunity of the applicants' members to use them for the purposes stated above. Such dredging and filling [would] produce changes to these wetlands which would be irrevocable and irreversible.

If the applicants were not allowed to participate in this action, they would have no recourse by which to protect their members' use of the marine ecosystem of which the wetlands are only a part. The applicants' interest in the area involved would be irreparably injured if the relief sought by the plaintiff was granted.

The applicants, thus, have a direct, substantial, and legally protected interest in the subject to this action. Likewise, a disposition of this action may as a practical matter forever impair, impede, and bar the applicants' ability to protect that interest, and the applicants have interposed meritorious defenses in this action.

This leaves the remaining issue on the question of intervention, as a matter of right, to that of whether the applicants' interest may be adequately represented by the existing parties.

It is obvious from the record that applicants' position is diametrically opposed to that of plaintiff's. They, therefore, could not adequately represent them.

The ultimate decision with respect to what will happen with the wetlands in question is still to be decided by the outcome of this case. The mere fact that defendants had previously denied [7 ELR 20225] plaintiff's dredge and fill requests does not mean that applicants' interest in the wetlands has been extinguished.

From representations made to the court, the proceedings below were quite lengthy and complex. Both counsel for the present plaintiff and the applicants participated in the administrative proceedings and are thoroughly familiar with the factual and legal issues involved. Although there was some question at the hearing concerning whether this civil suit would merely involve a review of the administrative record to see if there was substantial evidence to support the defendant's decision, it appears that plaintiff will attempt to present factual matters to the court as a means of showing a lack of this support for the administrative decision. That being the case, considering the complexity of the scientific matters in question, those who presented the evidence below may be in the best position to present the evidence before this court. Under those circumstances, the applicant organizations who acted as party opponents to the plaintiff in the administrative proceedings would be in a better position to do so in this court rather than the defendants, who merely acted as an arbiter in a neutral role in receiving evidence from both sides before making a final decision. Apparently, it was the applicants in the administrative proceedings who presented a case for preserving the wetlands in question rather than the defendants taking an advocate's position during the two-year administrative proceedings.

It is obvious from the wording of 33 U.S.C. § 1365 Congress felt that the Executive Branch of the United States Government would not always be in the best position to, or may be unwilling to, exercise its authority, in handling litigation under the Federal Water Pollution Control Act. That is why the citizen suit provision was incorporated in the statutes.

The court thus finds that the applicants have satisfied the requirements for intervention under Rule 24(a)(2) of the Federal Rules of Civil Procedure. In addition, the court is thoroughly convinced that the applicants have satisfied the requirements of Rule 24(b) for permissive intervention in this case.

This action concerns the interpretation of the Federal Water Pollution Control Act and the Rivers and Harbors Act of 1899 by the defendants to the plaintiff's request for permission to dredge and fill mangrove wetlands. Applicants' interest in the wetlands in question may be protected by these statutes and their defenses concern the same tract of mangrove wetlands near Marco Island, Florida, and the same decision rendered by the defendants with respect to the use of these wetlands. This clearly demonstrates questions of fact in common.

As stated above, the Federal Water Pollution Control Act, 33 U.S.C. § 1365, does give citizens the right to bring suit and the applicants' petition to intervene was timely filed.

Applicant organizations acted as a unit through single counsel in the administrative proceedings below, and have indicated to the court that the same representation would be made in this case. The court in exercising its discretion under this provision of the rule has considered whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties. The court finds that no such prejudice does or will exist. The applicant organizations' scientific expertise and experience with the administrative record and proceedings below will assist the court in adjudicating the rights of the parties as well as that of the applicants. In addition, this litigation is in its infancy and allowing an additional attorney to represent four parties before the court does not seem to encumber or delay a judicial review of an administrative proceeding that took approximately two years before the final decision was rendered.

Accordingly, applicants' Motions to Intervene in this action are GRANTED.