North Dakota, State of et al v. Swanson et al
Filing
79
ORDER: 1. Movants' Objections [Doc. No. 67] to the Magistrate Judge's December 21, 2012 Order [Doc. No. 63] are OVERRULED; 2. Defendants' Objections [Doc. No. 70] to the Magistrate Judge's December 12, 2012 Order [Doc. No. 63] are OVERRULED; 3. The Magistrate Judge's December 12, 2012 Order [Doc. No. 63] is AFFIRMED; and 4. Movants' Motion to Permissively Intervene in the action [Doc. No. 33] is DENIED (Written Opinion). Signed by Judge Susan Richard Nelson on 2/15/13. (LPH)
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UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
State of North Dakota, et al.,
Case No. 11-cv-3232 (SRN/SER)
Plaintiffs,
v.
ORDER AFFIRMING MAGISTRATE
JUDGE ORDER DATED
DECEMBER 21, 2012
Beverly Heydinger, et al.,
Defendants.
John A. Knapp, Thomas H. Boyd, Daniel J. Kelly, and Brent A. Lorentz, Winthrop &
Weinstein, P.A., 225 South Sixth Street, Suite 3500, Minneapolis, MN 55402-4629;
Casey Jacobson and Claire M. Olson, Basin Electric Power Cooperative, Office of
General Counsel, 1717 East Interstate Avenue, Bismarck, ND 58503-0564; David
Sogard, Minnkota Power Cooperative, Inc., PO Box 13200, Grand Forks, ND 58208;
Wayne K. Stenehjem, Office of the Attorney General, State of North Dakota, 600 East
Boulevard, 1st Floor, Bismarck, ND 58505-0040; Sandra Tabor, The Lignite Energy
Council, 1016 East Owens Avenue PO Box 2277, Bismarck, ND 58502; and William
Taylor, Woods Fuller Schultz & Smith, 300 South Phillips Avenue Suite 300, P.O. Box
5027, Sioux Falls, SD 57117-5027, for Plaintiffs.
Lisa A. Crum and John S. Garry, Office of the Attorney General, State of Minnesota, 445
Minnesota Street, Suite 1100, St. Paul, MN 55101-2128, for Defendants.
Elizabeth I. Goodpaster and Scott R. Strand, Minnesota Center for Environmental
Advocacy, 26 East Exchange Street, Suite 206, St. Paul, MN 55101; Sean H. Donahue,
Environmental Defense Fund, Donahue & Goldberg LLP, 2000 L Street NW, Suite 808,
Washington, DC 20036; Joanne Spalding and Robb Kapla, Sierra Club, 85 Second Street
San Francisco, CA 94105; Benjamin Longstreth, Natural Resources Defense Council,
1152 15th Street NW, Suite 300, Washington, DC 20005; Howard A. Learner,
Environmental Law & Policy Center, 35 E. Wacker Drive, Suite 1600, Chicago, IL
60601, for Movants.
1
SUSAN RICHARD NELSON, United States District Court Judge
This matter is before the Court on the Objections of the Minnesota Center for
Environmental Advocacy, Environmental Law & Policy Center, Environmental Defense
Fund, Sierra Club, Natural Resources Defense Council, Fresh Energy, and Izaak Walton
League of America’s (collectively “Movants”) and the Commissioners of the Minnesota
Public Utilities Commission (“MPUC”) and the Commissioner of the Minnesota
Department of Commerce (“MDOC”) (collectively “Defendants”) [Doc. Nos. 67, 70] to
Magistrate Judge Steven E. Rau’s December 21, 2012 Order denying Movants’ Motion
for Permissive Intervention. (Magistrate Judge Order dated December 21, 2012 [Doc.
No. 63].) After reviewing the Magistrate Judge’s Order for clear error, 28 U.S.C. §
636(b)(1)(A); accord D. Minn. L.R. 72.2(a), the Court affirms the Order for the reasons
set forth below.
I.
BACKGROUND
A.
Minnesota’s Next Generation Energy Act
The Minnesota legislature passed the Next Generation Energy Act (“NGEA”) in
2007, establishing energy and environmental standards related to carbon dioxide
emissions. 2007 Minn. Laws Ch. 136, art. 5, § 3. Minn. Stat. § 216H.03, subd. 3 seeks
to limit increases in “statewide power sector carbon dioxide emissions.” The statute
provides that “[u]nless preempted by federal law” or “until a comprehensive and
enforceable state law or rule pertaining to greenhouse gases that directly limits and
substantially reduces, over time, statewide power sector carbon dioxide emissions is
enacted and in effect,” no person shall:
2
(1) construct within the state a new large energy facility that would
contribute to statewide power sector carbon dioxide emissions;
(2) import or commit to import from outside the state power from a new
large energy facility that would contribute to statewide power sector carbon
dioxide emissions; or
(3) enter into a new long-term power purchase agreement that would
increase statewide power sector carbon dioxide emissions. For purposes of
this section, a long-term power purchase agreement means an agreement to
purchase 50 megawatts of capacity or more for a term exceeding five years.
Id. “Statewide power sector carbon dioxide emissions” are defined in the statute as “the
total annual emissions of carbon dioxide from the generation of electricity within the
state and all emissions of carbon dioxide from the generation of electricity imported from
outside the state and consumed in Minnesota.” Id. subd. 2. A “new large energy facility”
is defined as “any electric power generating plant or combination of plants at a single site
with a combined capacity of 50,000 kilowatts or more and transmission lines directly
associated with the plant that are necessary to interconnect the plant to the transmission
system.” Minn. Stat. § 216B. 2421, subd. 2(1).1
1
Minn. Stat. § 216H.03, subd. 1 specifically provides that the following are
not considered a “new large energy facility” under the law:
a facility that (1) uses natural gas as a primary fuel, (2) is designed to
provide peaking, intermediate, emergency backup, or contingency
services, (3) uses a simple cycle or combined cycle turbine technology,
and (4) is capable of achieving full load operations within 45 minutes
of startup for a simple cycle facility, or is capable of achieving
minimum load operations within 185 minutes of startup for a combined
cycle facility.
Minn. Stat. § 216H.03, subd. 1.
3
Certain persons are exempt from the prohibitions contained in Minn. Stat.
§ 216H.03, subd. 3. Minn. Stat. § 216H.03, subd. 4 provides that “[t]he prohibitions in
subdivision 3 do not apply if the project proponent demonstrates to the Public Utilities
Commission’s satisfaction that it will offset the new contribution to statewide power
sector carbon dioxide emissions with a carbon dioxide reduction project.” The carbon
dioxide reduction project must:
offset in an amount equal to or greater than the proposed new contribution
to statewide power sector carbon dioxide emissions in either, or a
combination of both, of the following ways:
(1) by reducing an existing facility’s contribution to statewide power
sector carbon dioxide emissions; or
(2) by purchasing carbon dioxide allowances from a state or group of
states that has a carbon dioxide cap and trade system in place that
produces verifiable emissions reductions.
Minn. Stat. 216H.03, subd. 4(b). The MPUC must ensure that proposed carbon dioxide
reduction projects are “permanent, quantifiable, verifiable, enforceable, and would not
have otherwise occurred.” Id. subd. 4(c).
The NGEA may be enforced by either the MPUC or the MDOC if either entity
“determines that any person is violating or about to violate this section.” Id., subd. 8.
The MPUC or MDOC may “refer the matter to the attorney general who shall take
appropriate legal action.” Id. The NGEA may also “be enforced by the attorney
general.” Id.
4
B.
Procedural Background
On November 2, 2011, Plaintiffs filed a Complaint against Minnesota’s Attorney
General Lori Swanson, five Commissioners of the MPUC, and one Commissioner of the
MDOC, each in their official capacities. (Compl. [Doc. No. 1].)2 Plaintiffs filed an
Amended Complaint on December 1, 2011. (Am. Compl. [Doc. No. 9].) In Count I,
Plaintiffs assert that Minn. Stat. § 216H.03, subd. 3(2)–(3) violates the Commerce Clause
of the United States Constitution. (Id. ¶¶ 85–98.) In Counts II and III, Plaintiffs claim
that Minn. Stat. § 216H.03, subd. 3(2)–(3) violates the Supremacy Clause of the United
States Constitution because the statute is preempted by the Clean Air Act, 42 U.S.C.
§§ 7410 et seq. (“CAA”) and the Federal Power Act, 16 U.S.C. §§ 791a et seq. (“FPA”).
(Id. ¶¶ 99–118.) In Count IV, Plaintiffs allege that Minn. Stat. § 216H.03, subdivision
3(2)–(3) violates the Privileges and Immunities Clause of the United States Constitution.
(Id. ¶¶ 119-127.) In Count V, Plaintiffs seek a declaratory judgment that the FPA
preempts Minn. Stat. § 216H.03, subd. 3(2)–(3). (Id. ¶¶ 128–133.) In Count VI,
Plaintiffs allege that Minn. Stat. § 216H.03, subd. 3(2)–(3) violates the Due Process
Clause of the Fourteenth Amendment of the United States Constitution. (Id. ¶¶ 134-143.)
2
Plaintiffs are the State of North Dakota; the Industrial Commission of North
Dakota; the Lignite Energy Council, a North Dakota trade association; Basin Electric
Power Cooperative, a non-profit whose core business is generating and transmitting
wholesale electric bulk power to customers; the North American Coal Corporation, the
largest lignite coal producer in the United States; Great Northern Properties Limited
Partnership, an owner of land in North Dakota containing surface mineral lignite;
Missouri Basin Municipal Power Agency d/b/a Missouri River Energy Services, an
electric utility; and Minnkota Power Cooperative, Inc., a nonprofit Minnesota cooperative
wholesale power provider to member owned distributors and cooperatives. (Compl. ¶¶
12–22 [Doc. No. 1].)
5
Plaintiffs further request a declaratory judgment adjudicating that Minn. Stat.
§ 216H.03, subd. 3(2)–(3) is unconstitutional and injunctive relief enjoining its
enforcement. (Id. at pp. 39–40.) Plaintiffs also request an award of costs and expenses
incurred in the litigation, including reasonable attorneys’ fees pursuant to 42 U.S.C.
§ 1988(b). (Id.)
On December 7, 2011, Defendants filed an Answer to the Amended Complaint
and a Motion for Judgment on the Pleadings on Counts II through VI of Plaintiffs’
Amended Complaint.3 (Answer to Am. Compl. [Doc. No. 10]); (Defs.’ Mot. for Partial J.
on the Pleadings [Doc. No. 11].) Defendants also moved to dismiss the Attorney General
as a party to this action. (Defs.’ Mot. for Partial J. on the Pleadings [Doc. No. 11].)
Following supplemental briefing, the Court denied Defendants’ Motion as to Counts II,
III, and V; granted it as to Counts IV and VI; and granted dismissal of Minnesota’s
Attorney General. (Mem. Op. and Order dated September 30, 2012 [Doc. No. 32].)
On November 26, 2012, Movants jointly moved for permissive intervention into
this action. (Mot. for Permissive Intervention [Doc. No. 33].) Defendants filed a brief in
support of the Motion and Plaintiff opposed it. (Defs.’ Mem. in Response to Movants’
Mot. to Intervene [Doc. No. 43]); (Pls.’ Mem. in Opp’n to Mot. for Movants’ Mot. to
Intervene [Doc. No. 44].) The Magistrate Judge denied Movants’ Motion for Permissive
Intervention on December 21, 2012. (Order dated December 21, 2012 [Doc. No. 63].)
The Magistrate Judge found that standing is required for permissive intervention under
3
Defendants answered the original Complaint on November 23, 2011. (Answer
[Doc No. 8].)
6
Eighth Circuit law and that Movants had failed to establish standing. (Order Dated
December 21, 2012 at 7–9 [Doc. No. 63].) The Magistrate Judge alternatively found that
even if Movants had standing, intervention was not justified after considering the factors
for permissive intervention. (Id. at 10–16.) While the Magistrate Judge found that
Movants’ Motion was timely and that Movants’ claims shared questions of law and fact
in common with the main action, the Magistrate Judge concluded that allowing Movants
to intervene would cause undue delay and prejudice. (Id. at 11–15.) The Magistrate
Judge also noted that Movants’ interests would be adequately represented by Defendants.
(Id. at 15–16.) Finally, the Magistrate Judge invited Movants to request participation in
the action as amici curiae to offer “a perspective or arguments different from those of the
parties that may indeed be helpful to the fair and just resolution of the issues presented in
this case.” (Id. at 16.)
On January 11, 2013, Movants and Defendants filed Objections to the Magistrate
Judge’s December 21, 2012 Order. (Movants’ Objection [Doc. No. 67]); (Defs.’
Objections [Doc. No. 70].) Plaintiffs responded to the Objections of Movants and
Defendants on January 25, 2013. (Pls.’s Resp. to Objection [Doc. No. 72].)
II.
ANALYSIS
A.
Standard of Review
Motions for permissive intervention are non-dispositive motions. D. Minn. LR
7.1(a). The standard of review for an appeal of a magistrate judge’s order on a nondispositive issue is extremely deferential. Reko v. Creative Promotions, Inc., 70 F. Supp.
2d 1005, 1007 (D. Minn. 1999). The Court must affirm the order unless it is clearly
7
erroneous or contrary to law. 28 U.S.C. § 636(b)(1)(A); accord D. Minn. LR 72.2(a). A
finding is clearly erroneous “when although there is evidence to support it, the reviewing
court on the entire record is left with the definite and firm conviction that a mistake has
been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948).
If the magistrate judge’s account of the evidence is plausible in light of the record viewed
in its entirety, the reviewing court may not reverse it even though had it been sitting as
the trier of fact, it would have weighed the evidence differently. Anderson v. Bessemer
City, 470 U.S. 564, 573–74 (1985).
B.
Objections
Movants and Defendants argue that the Magistrate Judge clearly erred in denying
Movants’ Motion for Permissive Intervention. (Movants’ Objection [Doc. No. 67]);
(Defs.’ Objection [Doc. No. 70].) Federal Rule of Civil Procedure 24(b) provides in
relevant part that:
On timely motion, the court may permit anyone to intervene who . . . has a
claim or defense that shares with the main action a common question of law
or fact . . . . In exercising its discretion, the court must consider whether
the intervention will unduly delay or prejudice the adjudication of the
original parties’ rights.
When deciding whether to grant permissive intervention, the Court considers three
factors: (1) whether the motion to intervene is timely; (2) whether the movant’s claim
shares a question of law or fact in common with the main action; and (3) whether
intervention will unduly delay or prejudice adjudication of the original parties’ rights. In
re Baycol Prods. Litig., 214 F.R.D. 542, 543–44 (D. Minn. 2003). The Eighth Circuit has
noted that “[a]lthough the adequacy of protection is only a minor variable in the Rule
8
24(b) decision calculus, it is not an illegitimate consideration.” S.D. ex rel. Barnett v.
United States Dep’t of Interior, 317 F.3d 783, 787 (8th Cir. 2003) (citations omitted).
The Court has discretion to grant or deny a motion for permissive intervention,
and its decision is reviewed under an abuse of discretion standard. Id. The Eighth
Circuit has stated that “[r]eversal of a decision denying permissive intervention is
extremely rare, bordering on nonexistent.” Id. (citations omitted). Reversal of a
decision to deny permissive intervention is reserved for situations when the court clearly
abused its discretion and failed to “articulate[] a legitimate reason for denying the Rule
24(b) motion.” Id. at 787–88.
Here, the Magistrate Judge found that Movant’s Motion for Permissive
Intervention was timely and shared questions of law or fact in common with the
underlying action. (Order Dated December 21, 2012 at 11–12 [Doc. No. 63].) Plaintiffs
do not dispute this finding. See D. Minn. LR 72.2(a) (“[A] party may not . . . assign as
error a defect in the Magistrate Judge’s order to which objection was not timely made.”).
Therefore, the only issue in resolving the Objections of Movants and Defendants is
whether the Magistrate Judge erred in finding that Movants’ Motion for Permissive
Intervention would cause undue delay or prejudice and that their interests would be
adequately represented by Defendants. (Movants’ Objection at 8–13 [Doc. No. 67]);
(Defs.’ Objection at 2–5 [Doc. No. 70].)
The Magistrate Judge correctly noted that “[t]he principal consideration in ruling
on a Rule 24(b) motion is whether the proposed intervention would unduly delay or
prejudice the adjudication of the parties’ rights.” (Order dated December 21, 2012 at 12
9
[Doc. No. 63]) (quoting S.D. ex rel. Barnett, 317 F.3d at 787 (citations omitted).) The
Magistrate Judge then found that the “Movants’ stated objective—to uphold the
constitutionality of the [NGEA]—is indistinguishable from that of Defendants.” (Id. at
13) (citations omitted.) The Magistrate Judge concluded that:
Given the parallel goals and defenses of Defendants and Movants,
combined with Defendants’ demonstrated willingness and capacity to
present those defenses, the resolution of this case will not be enhanced in
any significant way through the permissive intervention of Movants.
Rather, adding seven additional parties to duplicate arguments would only
be a source of repetition and delay.
(Id. at 14–15) (citations omitted.) This conclusion was supported by the presumption
under Eighth Circuit law that Movants’ interests would be adequately represented by
Defendants, and Movants failed to present the “strong showing” necessary to rebut this
presumption. (Id. at 15–16) (citing Curry v. Regents of Univ. of Minn., 167 F.3d 420,
423 (8th Cir. 1999) (“[W]hen a government entity is a party and the case concerns a
matter of sovereign interest, the government is presumed adequately to represent the
interests of the public . . . . This presumption may be rebutted by a strong showing of
inadequate representation.”).
Movants and Defendants argue that the Magistrate Judge improperly made as the
“cornerstone” of his ruling that Defendants would adequately represent Movants’
interests. (Movants’ Objection at 8 [Doc. No. 67]); (Defs.’ Objection at 3 [Doc. No. 70].)
According to Movants, “[a]n approach that elevates a showing of inadequacy of
representation into a rigid requirement for permissive intervention is inconsistent with
Rule 24.” (Movants’ Objection at 8 [Doc. No. 67]); accord (Defs.’ Objection at 3 [Doc.
10
No. 70]) (“As to the issue of adequacy of representation, [the Magistrate Judge]
improperly injected that issue into his consideration of the [Movants’] motion for
permissive intervention.”).
Movants and Defendant also contend that the Magistrate Judge’s conclusions
about adequacy of representation contained three errors: (1) Movants’ defenses to
Plaintiffs’ Amended Complaint are not identical to Defendants’ defenses; (2) the
Magistrate Judge “overlooked that [Movants] also represent members in other states . . .
who, by definition, cannot be represented by the State of Minnesota;” and (3) the
Magistrate Judge “discounted [Defendants’] position supporting the [Movants’]
intervention.” (Movants’ Objection at 9–10 [Doc. No. 67]); accord (Defs.’ Objection at
3–4 [Doc. No. 70].)
Plaintiffs respond that “[t]he adequacy of protection afforded to the prospective
intervenors by the existing parties is a legitimate consideration for permissive
intervention.” (Pls.’ Resp. to Objections at 10 [Doc. No. 72]) (citing S.D. ex rel Barnett,
317 F.3d at 787.) Plaintiffs allege that “given the Defendants are the parties whom the
Minnesota Legislature specifically tasked with enforcing the NGEA, it is reasonable to
expect the Defendants will adequately represent the interests of the public.” (Id. at 10.)
Moreover, even though Movants assert that their interests “may not be the same” as
Defendants, Plaintiffs state that Movants’ “argument fails because they have not
identified a specific conflict between the Defendants’ interest in the statute being upheld
and the [Movants’] interest in the statute being upheld.” (Id. at 11.)
11
Nevertheless, according to Plaintiffs, the Magistrate Judge “did not disregard
counsels’ representations that they would work together with Defendants to minimize
burden and delay[,]” but rather “considered those representations and reasonably
disagreed.” (Id. at 10.) Plaintiffs note that “[s]even additional parties and their
respective attorneys will undoubtedly mean more discovery (both in terms of number of
requests and the volume of information exchanged), more discovery disputes, more meetand-confer obligations, and more motions.” (Id.) Finally, Plaintiffs argue that “people
who are not residents of Minnesota generally could not be deemed within the ‘zone of
interests’ protected by a Minnesota statute and should therefore not have standing to
enforce or defend the statute.” (Id. at 13) (citing City of Clarkson Valley v. Mineta, 495
F.3d 567 (8th Cir. 2007).)
The Court agrees with Plaintiffs that the Magistrate Judge did not clearly err in
denying Movants’ Motion for Permissive Intervention. The Magistrate Judge carefully
considered the submissions of Movants and Defendants submissions and properly applied
Eighth Circuit law to hold that adjudication of Plaintiffs’ constitutional challenges to the
NGEA would not be advanced by Movants’ intervention and participation as parties. In
particular, the Magistrate Judge found intervention would unduly delay and prejudice the
rights of the original parties. Among other things the Magistrate Judge found that
“Movants’ presence would not further any interests of justice and would simply serve to
delay and overcomplicate this matter” and “intervention would change the complexion of
this case—transforming it from a constitutional question to an environmental policy
issue.” (Order Dated December 21, 2012 at 10 [Doc. No. 63].)
12
The Magistrate Judge also did not err in analyzing whether the adequacy of the
existing parties’ representation negated the need for Movants to intervene in the action.
In S.D. ex rel. Barnett, the Eighth Circuit stated that the “principal consideration” in
ruling on a Rule 24(b) motion is whether the proposed intervention would delay or
prejudice the parties’ rights. 317 F.3d at 787. But in that case, “the district court did not
determine whether the proposed intervention would cause undue delay or prejudice.” Id.
In fact, the district court in S.D. ex rel. Barnett only “examined whether the United States
could adequately protect the [movants] interest.” Id. When analyzing the district court’s
decision for abuse of discretion, the Eighth Circuit stated that “[a]lthough the adequacy of
protection is only a minor variable in the Rule 24(b) decision calculus, it is not an
illegitimate consideration.” Id. As such, the court concluded in S.D. ex rel. Barnett that
“the district court [did not] clearly abuse[] its discretion . . . by not granting the motion”
even though it did not expressly analyze whether the intervention would cause delay or
prejudice. Id.
Here, the Magistrate Judge not only considered the adequacy of representation to
Movants if they were not allowed to intervene in the case, but also properly considered
the well-recognized factors for permissive intervention and concluded, in his discretion,
that intervention was not appropriate. The Magistrate Judge expressly found that
allowing Movants to intervene in the action would cause undue delay and prejudice to the
parties. Accordingly, the Court finds that the Magistrate Judge’s decision to deny
13
Movants’ Motion for Permissive Intervention was not clearly erroneous or contrary to
law.4
Even though Movants’ Motion for Permissive Intervene is denied, the Court will
allow Movants to file amicus briefs in this action. The decision to allow the filing of an
amicus brief is based on “whether the brief[s] will assist the Court by presenting
arguments, theories, and or facts that are not contained in the parties’ briefs.” Am. Civil
Liberties Union of Minn. v. Tarek ibn Zayad Acad., No. 09-cv-138 (DWF/JJG), 2010
WL 1840301, at * 9 (D. Minn. May 7, 2010). Movants will likely have a unique
perspective on this case and perhaps helpful information given their level of expertise
that the parties may not provide. Accordingly, the Court encourages Movants to file
amicus briefs on motions in this action where they determine that additional information
would be helpful to the Court in making its findings.
4
The Magistrate Judge also determined that “Movants have not identified the
invasion of an interest sufficient to satisfy this Court that they possess adequate [Article
III] standing.” (Order dated December 21, 2012 at 9 [Doc. No. 63].) Movants object to
the Magistrate Judge’s finding that they are required to show standing to permissively
intervene in the action and, assuming that they are required to demonstrate standing, that
they have failed to do so. (Movants’ Objection at 2–8 [Doc. No. 67].) “To date, the
Eighth Circuit has not yet ruled on whether standing is a prerequisite for permissive
intervention.” In re Baycol Prods. Litig., 214 F.R.D. at 544 (citing Org. for Competitive
Mkts., Inc. v. Seaboard Farms, Inc., No. 00-3432, 2001 WL 842029, at *2 n.2 (8th Cir.
Feb. 1, 2001) (per curiam) (declining to address whether a third party seeking permissive
intervention must have standing)); but see Standard Heating & Air Conditioning Co. v.
City of Minneapolis, 137 F.3d 567, 570 (8th Cir. 1998) (“Article III standing is a
prerequisite for intervention in a federal lawsuit.”) (citation omitted). The Court need not
decide whether Movants must have standing or whether Movants have demonstrated
standing because the Court finds that the Magistrate Judge did not clearly err in
determining that Movants did not satisfy the requirements of Rule 24(b) for permissive
intervention.
14
III.
ORDER
Based on the foregoing, all the files, records, and proceedings herein, IT IS
HEREBY ORDERED THAT:
1.
Movants’ Objections [Doc. No. 67] to the Magistrate Judge’s December 21,
2012 Order [Doc. No. 63] are OVERRULED;
2.
Defendants’ Objections [Doc. No. 70] to the Magistrate Judge’s December
12, 2012 Order [Doc. No. 63] are OVERRULED;
3.
The Magistrate Judge’s December 12, 2012 Order [Doc. No. 63] is
AFFIRMED; and
4.
Movants’ Motion to Permissively Intervene in the action [Doc. No. 33] is
DENIED.
Dated: February 15, 2013
s/Susan Richard Nelson
SUSAN RICHARD NELSON
United States District Judge
15
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