Environmental Defense Fund v. Costle

Nos. 78-1471, -1515, -1566 (D.C. Cir. July 31, 1978)

The appellate court affirms the district court's denial of intervention to appellants. Because the states in which appellants are located had already been granted intervention in the litigation, appellants must be held to a greater showing of interest in order to qualify for intervention as of right. Despite the states' failure to oppose the intervention, that showing was not made below, and the appeal is denied.

Counsel are listed at 8 ELR 20782.

Wright and McGowan, JJ.

[8 ELR 20788]

Per curiam:

Order

On consideration of appellants' motions for summary reversal of appellees' motions for summary affirmance, of the motions by Environmental Defense Fund for oral argument and to strike affidavit in appellant Utah Power and Light Company's papers, of the responses filed with respect to the foregoing motions, and, for the reasons set forth in the attached memorandum, it is

ORDERED by the court that the appellants' motions for summary reversal are denied, it is

FURTHER ORDERED that the motion to strike affidavit attached to appellant Utach Power and Light Company's papers is granted and, it is

FURTHER ORDERED by the court that appellees' motions for summary affirmance are granted and the order of the district court on appeal herein be, and the same hereby is, affirmed.

The clerk is directed to transmit a certified copy of this order to the district court.

Memorandum

We affirm the order of the district court denying intervention to appellants. Since the States of Arizona, California, Colorado, Nevada, New Mexico, Utah, and Wyoming have intervened, in our view the case is governed by New Jersey v. New York, 345 U.S. 369 (1953), and under the parens patriae principle set forth in that case, intervention as of right must be denied.¹ That "principle is a necessary recognition of sovereign dignity, as well as a working rule for good judicial administration." Id. at 373 (emphasis supplied). When the views of appellants are identical to those of their states, there is no need for intervention; when the views of appellants differ from those of their states, those differences are to be resolved through the internal mechanisms, such as the political processes, of the sovereign states rather than by the federal courts.

We have considered appellants' efforts to distinguish New Jersey v. New York, and we do not find them persuasive.² Under the doctrine of that case, an "intervenor whose state is already a party should have the burden of showing some compelling interest in his own right," id. at 373 (emphasis supplied). Appellants' stated justifications for intervention do not meet this strict test. Appellants urge that their states do not oppose intervention. Lack of state opposition, however, does not rise to the level of a compelling interest in separate representation. The states may not readily relinquish their sovereign function of resolving differences (if any) among their political subdivisions' and citizens' views on water plans and rights as they relate to this case once they have intervened to represent those subdivisions and citizens. Appellant Metropolitan Water District of Southern California (Southern California) urges that its interests created by federal statutes and water contracts cannot be adequately represented by the State of [8 ELR 20789] California. In the context of this case, we do not find that its interests require separate representation.³

We emphasize that our decision imports no view whatsoever on the merits of the case, which were neither briefed for the court nor considered by it on these motions.

1. We also do not find that the district court abused its broad discretion to deny permissive intervention.

2. The Supreme Court's opinion in that case places little emphasis on the fact that the case was within the court's original jurisdiction, and does not even mention the wording of FED. R. CIV. P. 24(a) of that time.

3. We are not surprised that the states welcome intervention on their side. The position of the states was a factor relevant to the District Court's decision on permissive intervention, but we do not find that it creates mandatory intervention rights.

Southern California has not made the showing of concrete adverse interests of state and locality in this context required to find that separate representation is necessary in this case. We assume that if the district court found, in the course of deliberation on the merits, that some major argument or claim advanced by California had to be rejected solely on the grounds that it was personal to the absentee Southern California, Cf. New Mexico v. Aamodt, 537 F.2d 1102, 1107 (10th Cir. 1976), that the district court would reconsider granting southern California limited intervention.