Alt v. United States Environmental Protection Agency , 758 F.3d 588 ( 2014 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-2200
LOIS ALT, d/b/a Eight is Enough; AMERICAN FARM BUREAU
FEDERATION; WEST VIRGINIA 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.
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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 with EPA administrative enforcement proceedings
against her. In the latter stages of Alt’s 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 apparent
violations of the Clean Water Act (the “CWA”). On June 14,
2012, Alt initiated her lawsuit against the EPA in the district
court, requesting a declaration that the Compliance Order was
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invalid because the discharges from her farm constituted
“agricultural stormwater,” which is exempt from the CWA’s
permitting requirements. 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, the American Farm Bureau Federation and the West
Virginia Farm Bureau jointly moved to intervene in the
litigation as plaintiffs. Three months later, the district
court granted the joint motion and entered its initial
scheduling order. 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 December 14, 2012, the EPA withdrew its Compliance
Order. 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 Compliance Order rendered the entire
proceeding moot. Alt disagreed, maintaining that the district
court retained jurisdiction because the EPA had not altered its
position that her Hardy County farm remained subject to the
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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 water advocacy organizations to intervene as
defendants. 1 The court then modified its scheduling order for a
second time, 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. In a motion accompanied
by an extensive memorandum and multiple exhibits that were
outside the administrative record, CBF asserted a right to
intervene pursuant to Federal Rule of Civil Procedure 24(a),
and, alternatively, sought permission to intervene under Rule
24(b). 2 In furtherance of the intervention motion, CBF contended
that the judicial declaration sought by Alt threatened to
seriously undermine a decades-long effort to clean up 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.”
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Chesapeake Bay and its various tributaries. 3 Although neither
the EPA nor the intervening defendants opposed CBF’s
intervention motion, the various plaintiffs objected 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 delay the adjudication of the original
parties’ rights.” Denial Order 5. 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)
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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. See NAACP v. New York, 413 U.S. 345, 365-66
(1973); Houston Gen. Ins. Co. v. Moore, 193 F.3d 838, 839 (4th
Cir. 1999). Indeed, we have emphasized that a court’s
discretion in this regard is “wide.” See Gould v. Alleco, Inc.,
883 F.2d 281, 286 (4th Cir. 1989).
In order to properly determine whether a motion to
intervene in a civil action is sufficiently timely, a trial
court in this Circuit is obliged to assess three 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. See
Gould, 883 F.2d at 286. Our review of these factors in this
at bar. See Alt v. EPA, No. 13-2527 (4th Cir. Feb. 6, 2014),
ECF No. 39.
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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 below had already reached a
relatively advanced stage. Seven other parties had long since
requested and received permission from the district court to
intervene. Several months of settlement negotiations had
transpired. The EPA’s motion to dismiss Alt’s case had been
fully briefed, argued, and denied. 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. See Scardelletti v. Debarr,
265 F.3d 195, 202 (4th Cir. 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.” Br. of
Appellant 13. CBF asserts that it proposed to allow the
plaintiffs extra time and enlarged page limits in their written
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submissions, thereby mitigating the prejudice it might have
otherwise visited. 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 reasons
espoused by CBF for its tardy intervention motion. 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. Br. of Appellant 14-15.
Stated plainly, CBF admits that it gambled and lost in the
execution of its litigation strategy. Such deliberate
forbearance understandably engenders little sympathy. 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). In these circumstances, we are
unable to conclude that the court abused its discretion by
denying CBF’s motion to intervene.
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III.
Pursuant to the foregoing, we are satisfied to affirm the
district court’s Denial Order.
AFFIRMED
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