Opinion
Case No. 4:04-cv-95.
October 19, 2004
ORDER
Consistent with the Opinion entered this day, the Court grants the motion to intervene filed by LRB and MCRD (Dkt. #11) and denies the motion to intervene filed by the Sierra Club (Dkt. #33). However, the Court shall permit the Sierra Club to participate in this matter as amicus curiae.
IT IS SO ORDERED.
OPINION
This matter is before the Court on the Motion to Intervene filed by Little River Band of Ottawa Indians and Manistee Citizens for Responsible Development, Inc., (Dkt. #11), and the Motion to Intervene filed by the Sierra Club, (Dkt. #33). As discussed below, the motion to intervene filed by Little River Band of Ottawa Indians and Manistee Citizens for Responsible Development, Inc. is granted and the motion to intervene filed by the Sierra Club is denied. The Sierra Club may participate as amicus curiae.BACKGROUND
Plaintiff Manistee Salt Works Development Corporation (MSWDC) possesses an ownership interest in property located on the Lake Manistee shoreline in the City of Manistee. In 2002, Plaintiff began exploring the possibility of building a coal-fueled power plant on this property. The property in question is zoned industrial. However, because of the intended operation of the power plant, Plaintiff was required to obtain a special use permit from Defendant City of Manistee (the City).
Plaintiff applied for a special use permit from the City and in support of its application met with various city officials and submitted information relevant to its request. Proposed intervenors Little River Band of Ottawa Indians (LRB) and Manistee Citizens for Responsible Development, Inc. (MCRD) opposed Plaintiff's request and employed consultants to evaluate the potential impact of Plaintiff's proposal on property values, the local economy, and the environment. Proposed intervenors LRB and MCRD submitted these evaluations to the City.
The City ultimately denied Plaintiff's request for a special use permit, relying in part on information submitted by LRB and MCRD. Rather than appeal the City's decision in the state courts of Michigan, Plaintiff initiated the present action. Plaintiff claims that the City violated its constitutional rights, specifically, its equal protection and due process rights, by refusing Plaintiff's request for a special use permit. Plaintiff also asserts state law claims, asserting that Defendant's actions violate the City and Village Zoning Act. Proposed intervenors LRB, MCRD, and the Sierra Club now seek to intervene in this matter as defendants.
ANALYSIS
A. Intervention as of Right
Pursuant to Federal Rule of Civil Procedure 24 non-parties may, under certain circumstances, intervene in an ongoing matter. Rule 24 provides for both intervention as of right as well as intervention at the Court's discretion. With respect to intervention as of right, Rule 24 states as follows:
Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.
The Sixth Circuit has interpreted Rule 24(a) to require a four-part test: (1) the motion to intervene was timely filed, (2) the proposed intervenor possesses a substantial legal interest in the subject matter of the case, (3) the proposed intervenor's ability to protect that interest may be impaired in the absence of intervention, and (4) the parties already before the court may not adequately represent the proposed intervenor's interest. Grutter v. Bollinger, 188 F.3d 394, 397-98 (6th Cir. 1999) (citing Jansen v. City of Cincinnati, 904 F.2d 336, 340 (6th Cir. 1990)).
1. Timeliness of Motion to Intervene
The Court considers all relevant circumstances in determining whether a motion to intervene is timely. Jansen, 904 F.2d at 340 (6th Cir. 1990) (allowing intervention when motion was filed half-way through the discovery period). The following are factors in the Court's determination of a motion's timeliness: (1) the point to which the suit has progressed; (2) the purpose for which intervention is sought; (3) the length of time preceding the application during which the proposed intervenors knew or should have known of their interest in the case; (4) the prejudice to the original parties due to the proposed intervenors' failure to promptly intervene after they knew or reasonably should have known of their interest in the case; and (5) the existence of unusual circumstances militating against or in favor of intervention. Grubbs v. Norris, 870 F.2d 343, 345 (6th Cir. 1989).
This case is in its initial stage. See Michigan State AFL-CIO v. Miller, 103 F.3d 1240, 1245 (6th Cir. 1997) (holding that the motion to intervene was timely because the case was "obviously in its initial stage"). The motions filed by the proposed intervenors were filed prior to the Fed.R.Civ.P. 16 conference, and discovery has not commenced. Further, the current parties do not assert that the motions are untimely. The motions to intervene were timely filed.
2. Substantial Legal Interest
The Supreme Court has identified a substantial legal interest as "a significantly protectable interest." Donaldson v. United States, 400 U.S. 517, 532 (1971). The Sixth Circuit subscribes to a "rather expansive notion of the interest sufficient to invoke intervention of right." Grutter, 188 F.3d at 398 (quoting Miller, 103 F.3d 1240, 1245 (6th Cir. 1997)). The Sixth Circuit has not required a Rule 24(a)(2) proposed intervenor to demonstrate "a specific legal or equitable interest." Grutter, 188 F.3d at 398 (quoting Miller, 103 F.3d at 1245). Furthermore, a proposed intervenor "need not have the same standing necessary to initiate a lawsuit." Grutter, 188 F.3d at 398 (quoting Miller, 103 F.3d at 1245). The Sixth Circuit requires a "direct, substantial interest" in the litigation which must be "significantly protectable." Purnell v. City of Akron, 925 F.2d 941, 947 (1991) (citing Jansen, 904 F.2d at 341; Grubbs, 870 F.2d at 346; Meyer Goldberg, Inc. of Lorain v. Goldberg, 717 F.2d 290, 292 (6th Cir. 1983); Brewer v. Republic Steel Corp., 513 F.2d 1222, 1223 (6th Cir. 1975)).
This proposition initially appears startling since standing is a constitutional limitation arising from the case or controversy requirement of Article III of the U.S. Constitution. However, that requirement is already met by the dispute between the original parties.
Both parties rely on an analysis of state zoning law and state court decisions regarding zoning in an attempt to establish a "substantial legal interest" or lack thereof. However, it seems to the Court that this inquiry is of minimal relevance at this time, given that Plaintiff has asserted a cause of action based on the United States Constitution. The Court is mindful that Count III of Plaintiff's Complaint is based on Michigan zoning law. However, it is by no means clear that the Court will even reach state law claims. These are brought pursuant to the Court's supplemental jurisdiction. If Plaintiff does not prevail on its constitutional claims, the Court may well exercise its discretion under the statute to dismiss the supplemental state claims. 28 U.S.C. § 1367(c)(3); see, e.g., Bigg Wolf Discount Video Movie Sales, Inc. v. Montgomery County, Maryland, 256 F.Supp.2d 385 (D.Md. 2003) (court would not exercise supplemental jurisdiction to enjoin adult entertainment business from violating zoning ordinance, after rejecting all arguments advanced by the operator that the ordinance violated the First and Fourteenth Amendment rights of the operator and was left with simply a zoning enforcement proceeding more appropriately conducted by state court); May v. Town of Mountain Village, 944 F.Supp. 821 (D.Colo. 1996) (federal district court would not exercise supplemental jurisdiction over state law claims regarding whether the town's charter's voting provisions violated state statutory and constitutional law, in as much as claims involved novel issues of state law; the court had granted summary judgment as to all claims as to which it had original jurisdiction). The parties' positions concerning state zoning law may well have tremendous relevance should the court reach these questions. However, the "substantial legal interest" raised by the parties' motions to intervene under Fed.R.Civ.P. 24 is a distinct inquiry in this federal lawsuit.
a. LRB and MCRD
Plaintiff seeks to overturn the Defendant City's denial of the special use permit. Both LRB and MCRD have demonstrated a direct and substantial interest in the City's decision to deny Plaintiff's special use permit. LRB and MCRD claim that the City relied upon scientific findings submitted by them and their petition, signed by community members opposing the project, in making its final decision to deny Plaintiff's special use permit. (Dkt. #12 at 2). These two local groups were active in the dispute over Plaintiff's project throughout the permit process. In response to the urging of MCRD, the City held additional hearings for public comment regarding the special use permit. (Dkt. #12 at 9, n. 2). LRB and MCRD allege extensive investment in studying the environmental impacts of Plaintiff's proposed coal-fueled power plant on Lake Manistee and the surrounding community. According to LRB and MCRD, consultants for LRB testified before the City's Planning Commission and presented evidence of alleged adverse impacts that increased mercury levels from Plaintiff's proposed plant could have on fish, other wildlife, the health of citizens, property values, and the local economy. (Dkt. #12 at 7-9, Exhibits 2-12).
As residents of the community, living in close proximity to the proposed plant, LRB and MCRD have a direct and substantial interest in the protecting the health and safety of tribe and community members, the quality of air and water, and the value of their property. The professionals employed by these proposed intervenors stated that an advisory is already in place due to high levels of mercury in the water and air in the Manistee area, and cautioned that an increase in these levels would likely have a negative impact on the health, safety, and property values of the citizens living in the community. (Dkt. #12 at 7-9, Exhibits 2, 3, 5, 6, 7, 11). Specifically, these experts opine that the dangers of mercury poisoning are increased for children, fetuses, women of childbearing age, and could have a devastating effect on those residents who consume large quantities of fish. (Dkt. #12 at 7, Exhibits 5, 12). A survey performed by LRB's Natural Resource Department found that inland fishing still has an important role in the tribe's way of life, and that the tribe consumes a high proportion of fish. (Dkt. #12 at 7, Exhibit 2). Additionally, the Michigan Department of Environmental Quality (MDEQ) allegedly directed Plaintiff to conduct an assessment of the risk posed by increased levels of mercury, specifically as to subsistence fisherman. (Dkt. #12 at 7, Exhibit 3).
LRB and MCRD also studied the economic ramifications as well as the environmental implications of Plaintiff's plant. The Michigan Department of Natural Resources (MDNR) expressed its concern over the impact to the local economy in an area that supports heavy sport fishing. (Dkt. #12 at 7-9, Exhibit 10). Consultants and members of the two groups addressed concerns about decreasing property values, increased traffic, and greater burdens on emergency services and community resources. (Dkt. #12 at 7-9, Exhibits 4, 9, 11).
LRB also argues that the tribe is in a unique position to intervene to protect its interests as a sovereign. (Dkt. #12 at 4-5, Exhibit 1). LRB asserts that it is in the process of re-acquiring tribal lands in the area, that it has treaty-reserved fishing rights, and that it has an interest in protecting the property near the plant for future development. (Dkt. #12 at 5-6, Exhibit 1). Likewise, although the correctness of LRB and MCRD's assertions regarding specific property rights and values, the economic impact of the plant, and the environmental impact of increased mercury levels are very much still open to question, their potential impact demonstrates a significantly protectable interest in LRB and MCRD's right to present these issues as parties in this case. Having played a significant role in the City's decision, these local groups also have a continued interest in participation in the resolution of this dispute. Plaintiff's characterization of the LRB and MCRD's interests as no different than any other member of the public is not supported given the proposed intervenors' extensive involvement in the underlying issue which is in dispute.
b. Sierra Club
While the Sierra Club's efforts to improve education about the environment and promote environmental stewardship, preservation, conservation, and safeguarding of natural resources are noted, the Sierra Club's interests in responsible land use, public health, and environmental protection are general interests that are neither direct nor substantial enough to merit intervention in this lawsuit. (Dkt. #34 at 3).
The Sierra Club did not participate, at least directly, in the public hearings leading to the City's decision to deny Plaintiff's special use permit. The Sierra Club did not invest substantial resources to directly investigate the effects of this particular plant development on this particular piece of property. While some members of the Sierra Club happen to reside in the Manistee area, this group, unlike MCRD, was not formed for the purpose of addressing particular health and safety issues within the Manistee community. (Dkt. #34 at 3). The Sierra Club has no direct interest in preserving property values and addressing damage to the local economy and quality of life in the Manistee area. While the Sierra Club has an interest in a clean and safe environment that is shared with all citizens, this general interest does not rise to the level of a direct, substantial interest in the particular special use permit in question in this case. See Miller, 103 F.3d at 1246 (holding that "the union lacked a `direct, substantial, legally protectable interest'" because the union's interest was a general concern shared with all concerned unions and citizens). However, in light of the Sierra Club's special knowledge and insight into certain matters relevant in this action, the Club may participate as amicus curiae. Id. at 1244-48 (recognizing district court's authority to permit a proposed intervenor to instead participate as amicus curiae).
Because the Sierra Club does not have a substantial legal interest in the subject matter of the case, the Court will not further inquire into the final two elements for intervention of right as to the Sierra Club.
3. Impairment Absent Intervention
With respect to LRB and MCRD, the proposed intervenor's "burden is minimal" concerning this element of the analysis, and is satisfied if "impairment of its substantial legal interest is possible if intervention is denied." Grutter, 188 F.3d at 398 (quoting Miller, 103 F.3d at 1247).
LRB and MCRD have argued that their ability to protect their property and quality of life interests would be impaired if denial of Plaintiff's special use permit is reversed, and the City is enjoined from preventing construction of the plant. (Dkt. #12 at 13). The professionals employed by these proposed intervenors and members of each group have also suggested that the conditions recommended to the Planning Commission for granting a special use permit, even if fulfilled, would not comply with the overall purpose of the special use permit approval process — to ensure that a new operation will protect the health safety and welfare of the community. (Dkt. #12 at 13, Exhibits 5, 7). LRB and MCRD also assert that an adverse ruling against the City could impair efforts of these groups to litigate their interests in future challenges. (Dkt. #12 at 13).
If Plaintiff is allowed to proceed in developing its plant in compliance with the proposed conditions, LRB and MCRD's interest in preventing development of the plant and protecting the health and safety of their members from the claimed environmental and economic impacts of such a plant within their community, could be impaired.
4. Inadequate Representation
The proposed intervenor must also demonstrate that the existing parties "may not adequately represent their interests." Grutter, 188 F.3d at 400. However, the proposed intervenor is "not required to show that the representation will in fact be inadequate," as it may suffice "to show that the existing party who purports to seek the same outcome will not make all of the prospective intervenor's arguments." Id. (quoting Miller, 103 F.3d at 1247).
LRB and MCRD claim that differing interests and an unlikelihood that the City would raise all of their arguments may prevent the proposed intervenors from being adequately represented by the City. (Dkt. #12 at 20). The Court agrees. The City initially favored the development of Plaintiff's plant and expressed optimism that the plant could provide a boost to the local economy and create new local jobs. (Dkt. #12 at 18). In contrast, LRB and MCRD have consistently opposed the operation of Plaintiff's plant. Proposed intervenors also intend to argue the necessity of an amendment to the City's Master Plan prior to approving Plaintiff's special use permit, while the City has apparently not made this argument. (Dkt. #12 at 20, Exhibit 20). Perhaps most significantly, the City acknowledged that its financial resources with which to defend against this suit are limited. (Dkt. #12 at 22). Further, Plaintiff seeks $100 million in damages. Such financial pressures could understandably increase pressure on the City to compromise its position. The Court finds that the interests of LRB and MCRD are not identical to and may not be adequately represented by the City. B. Permissive Intervention
Rule 24 also provides the standard for permissive intervention, stating 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 Sierra Club's interest in the present matter is adequately represented and protected by permitting LRB and MCRD to intervene as party defendants. The Sierra Club's interests are further protected by its ability to make any different or unique arguments as amicus curiae. Accordingly, the Sierra Club's motion for permissive intervention is denied.
CONCLUSION
For the reasons articulated herein, the Court grants the motion to intervene filed by LRB and MCRD (Dkt. #11) and denies the motion to intervene filed by the Sierra Club (Dkt. #33). However, the Court shall permit the Sierra Club to participate in this matter as amicus curiae.
An Order consistent with this Opinion will enter.