Chesapeake Bay Foundation v. Alt, No. 13-2200 (4th Cir. 2014)
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Plaintiff filed suit against the EPA seeking declaratory relief in connection with its administrative enforcement proceedings against her. CBF moved to intervene but the district court denied the motion as untimely. The court concluded that when CBF moved to intervene, the proceedings had already reached a relatively advanced stage. Further, CBF conceded that its belated intervention would cause some delay and would require plaintiffs to expend "extra effort." CBF's deliberate forbearance understandably engendered little sympathy. Accordingly, the court concluded that the district court did not abuse its discretion in denying the motion to intervene.
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PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-2200 LOIS ALT, d/b/a Eight is Enough; AMERICAN FEDERATION; WEST VIRGINIA FARM BUREAU, FARM BUREAU Plaintiffs Appellees, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; CENTER FOR FOOD SAFETY; FOOD & WATER WATCH; POTOMAC RIVERKEEPER; WEST VIRGINIA RIVERS COALITION; WATERKEEPER ALLIANCE, INCORPORATED, Defendants, and CHESAPEAKE BAY FOUNDATION, INCORPORATED, Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Elkins. John Preston Bailey, Chief District Judge. (2:12-cv-00042-JPB) Argued: May 13, 2014 Decided: July 14, 2014 Before TRAXLER, Chief Judge, KING, Circuit Judge, and DAVIS, Senior Circuit Judge. Affirmed by published opinion. Judge King wrote the opinion, in which Chief Judge Traxler and Senior Judge Davis joined. ARGUED: Jon Alan Mueller, CHESAPEAKE BAY FOUNDATION, INC., Annapolis, Maryland, for Appellant. James T. Banks, HOGAN LOVELLS US LLP, Washington, D.C., for Appellees. ON BRIEF: Christine K. Tramontana, CHESAPEAKE BAY FOUNDATION, INC., Annapolis, Maryland, for Appellant. David L. Yaussy, ROBINSON & MCELWEE PLLC, Charleston, West Virginia, for Appellee Lois Alt, d/b/a Eight is Enough. Joanne Rotondi, HOGAN LOVELLS US LLP, Washington, D.C., for Appellees American Farm Bureau Federation and West Virginia Farm Bureau. 2 KING, Circuit Judge: Plaintiff Lois Alt, a West Virginia farmer, sued the United States Environmental Protection Agency (the EPA ) in the Northern District of West Virginia, seeking declaratory relief in connection against her. with EPA In the administrative latter enforcement stages of Alt s proceedings litigation, appellant Chesapeake Bay Foundation, Incorporated ( CBF ), moved to intervene as a defendant. The district court denied CBF s intervention motion as untimely. See Alt v. EPA, No. 2:12-cv- 00042 (N.D. W. Va. July 30, 2013), ECF No. 104 (the Denial Order ). CBF appeals the Denial Order, and, as explained below, we affirm. I. Alt owns and operates a chicken farm in Hardy County, West Virginia. In June 2011, the EPA conducted an inspection and observed that rainwater befouled by pollutants, that is, dander, manure, and other fine particulates, had drained from ditches on Alt s farm into nearby streams. Because Alt had not obtained any permits for such discharges, the EPA issued a Compliance Order to her on November 14, 2011, identifying violations of the Clean Water Act (the CWA ). apparent On June 14, 2012, Alt initiated her lawsuit against the EPA in the district court, requesting a declaration that the Compliance Order was 3 invalid because agricultural the discharges stormwater, permitting requirements. from which her is farm exempt constituted from the CWA s See 33 U.S.C. § 1362(14); 40 C.F.R. § 122.26. On July 19, 2012, approximately a month after Alt s lawsuit was filed, Virginia American Farm litigation court the as Bureau Farm jointly plaintiffs. granted the scheduling order. Bureau Federation moved to Three joint months motion and and the West in the intervene later, the district entered its initial Then, on December 6, 2012, a group of five clean water advocacy organizations likewise moved to intervene in the lawsuit as defendants, alongside the EPA. Shortly thereafter, in response to the plaintiffs unopposed motion, the court extended the deadlines in its scheduling order. On Order. December 14, 2012, the EPA withdrew its Compliance About a month later, the parties jointly secured a stay of Alt s lawsuit while they pursued settlement negotiations with respect to the administrative enforcement dispute. The settlement discussions were not fruitful, however, and in March 2013 the EPA moved to dismiss the lawsuit, contending that its withdrawal of the proceeding moot. Compliance Order rendered the entire Alt disagreed, maintaining that the district court retained jurisdiction because the EPA had not altered its position that her Hardy County 4 farm remained subject to the CWA s discharge permitting requirements. On April 22, 2013, the court denied the EPA s motion to dismiss and granted the motions of the clean defendants. 1 second time, water advocacy organizations to intervene as The court then modified its scheduling order for a directing the plaintiffs to file any summary judgment motions by July 1, 2013, with the defendants to file any cross-motions and responses by August 1, 2013. The plaintiffs filed a joint motion for summary judgment at the modified deadline. The next day, July 2, 2013, CBF made its first appearance in the Alt litigation. by an extensive outside the memorandum administrative and In a motion accompanied multiple record, CBF exhibits asserted that a were right to intervene pursuant to Federal Rule of Civil Procedure 24(a), and, alternatively, sought permission to intervene under Rule 24(b). 2 that In furtherance of the intervention motion, CBF contended the seriously judicial undermine declaration a sought decades-long by effort Alt to threatened clean up to the 1 The five intervening defendants are the Center for Food Safety; Food & Water Watch; Potomac Riverkeeper; West Virginia Rivers Coalition; and Waterkeeper Alliance, Incorporated. 2 Rule 24 creates two intervention alternatives, both subject to the filing of a timely motion. Rule 24(a) governs Intervention of Right, while Rule 24(b) addresses Permissive Intervention. 5 Chesapeake Bay and its various tributaries. 3 the EPA nor intervention the motion, intervening the Although neither defendants various plaintiffs opposed objected CBF s on the basis of timeliness, among other grounds. On July 30, 2013, the district court denied CBF s motion to intervene. The court s ruling rested solely on the ground that CBF s motion had not been timely filed and would, by [its] very nature . . . unduly parties rights. delay the adjudication Denial Order 5. of the original On September 25, 2013, CBF filed a timely notice of appeal, and we possess jurisdiction pursuant to 28 U.S.C. § 1291. See Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370, 377 (1987) ( [W]hen an order prevents a putative intervenor from becoming a party in any respect, the order is subject to immediate review. ); see also Bridges v. Dep t of Md. State Police, 441 F.3d 197, 207-09 (4th Cir. 2006) (recognizing settled principle that denial of a motion to intervene is an appealable final order ). 4 3 The pollutants from Alt s Hardy County farm discharge into the navigable waters of the United States. Surface runoff from the farm finds its way into nearby Mudlick Run, a perennial stream that feeds into Anderson Run, a tributary of the South Branch of the Potomac River. The Potomac, in turn, is a major tributary of the Chesapeake Bay. 4 The district court entered final judgment on the merits of Alt s lawsuit on October 23, 2013. The appeal therefrom to this Court is being held in abeyance pending resolution of the matter (Continued) 6 II. A party seeking to intervene under either Federal Rule of Civil Procedure 24(a) or 24(b) may do so only upon the filing of a timely motion. CBF contends that the district court erred in concluding that its motion to intervene failed to satisfy the threshold timeliness requirement. The determination of timeliness is committed to the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of that discretion. (1973); Cir. See NAACP v. New York, 413 U.S. 345, 365-66 Houston Gen. Ins. Co. v. Moore, 193 F.3d 838, 839 (4th 1999). Indeed, we have emphasized discretion in this regard is wide. that a court s See Gould v. Alleco, Inc., 883 F.2d 281, 286 (4th Cir. 1989). In order to intervene in court this in a properly civil determine action Circuit is is whether sufficiently obliged to assess a motion timely, a three to trial factors: first, how far the underlying suit has progressed; second, the prejudice any resulting delay might cause the other parties; and third, why the movant was tardy in filing its motion. Gould, 883 F.2d at 286. See Our review of these factors in this at bar. See Alt v. EPA, No. 13-2527 (4th Cir. Feb. 6, 2014), ECF No. 39. 7 case counsels against disturbing the district court s disposition of CBF s intervention motion. On the first factor, we observe that when CBF moved to intervene, the proceedings relatively advanced stage. below had already reached a Seven other parties had long since requested and received permission from the district court to intervene. Several months of settlement transpired. The EPA s motion to dismiss Alt s case had been fully briefed, argued, and denied. negotiations had The case had been stayed once, and the court s scheduling order had been extended twice. Moreover, summary judgment briefing and related proceedings had commenced and were ongoing. In such circumstances, the court was reasonably reluctant to arrest the momentum of the lawsuit so near to its final resolution. 265 F.3d 195, 202 (4th Cir. See Scardelletti v. Debarr, 2001) ( The purpose of the [timeliness] requirement is to prevent a tardy intervenor from derailing a lawsuit within sight of the terminal. ), rev d on other grounds, Devlin v. Scardelletti, 536 U.S. 1 (2002). The second factor prejudice also weighs against CBF s intervention request. CBF concedes (as it must) that its belated intervention would have caused some delay, and would have required the plaintiffs to expend extra effort. Appellant 13. CBF asserts that it proposed to Br. of allow the plaintiffs extra time and enlarged page limits in their written 8 submissions, thereby otherwise visited. mitigating the prejudice it might have But the district court, having its finger on the pulse of the proceedings, characterized CBF s proposal as too little, and too late. Denial Order 6. Affording the court its proper deference, we are in no position to disagree. Finally, we must evaluate the soundness of the espoused by CBF for its tardy intervention motion. reasons Belying its late entry, CBF was not at all unaware of what was transpiring in the district court. Instead, CBF candidly acknowledges that it had closely monitored the proceedings in Alt s lawsuit and made a strategic decision not to devote its limited resources to the matter at an earlier stage, believing the court would grant the EPA s motion to dismiss. Stated plainly, execution of CBF its admits that litigation it Br. of Appellant 14-15. gambled strategy. and lost Such forbearance understandably engenders little sympathy. in the deliberate See Moten v. Bricklayers, Masons, & Plasterers, Intern. Union of Am., 543 F.2d 224, 228 (D.C. Cir. 1976) (deeming motion to intervene untimely where decision not to seek earlier intervention was informed and tactical choice). unable to conclude that the In these circumstances, we are court denying CBF s motion to intervene. 9 abused its discretion by III. Pursuant to the foregoing, we are satisfied to affirm the district court s Denial Order. AFFIRMED 10
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