State of California v. Wheeler ( 2020 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA 8 9 10 SAN FRANCISCO BAYKEEPER; SAVE THE BAY; COMMITTEE FOR GREEN 11 FOOTHILLS; CITIZENS’ COMMITTEE No. C 19-05941 WHA (lead case) TO COMPLETE THE REFUGE; and 12 STATE OF CALIFORNIA, by and through Consolidated With XAVIER BECERRA, ATTORNEY 13 GENERAL, No. C 19-05943 WHA 14 Plaintiffs, 15 v. ORDER CONSOLIDATING CASES, GRANTING MOTIONS TO 16 U.S. ENVIRONMENTAL PROTECTION INTERVENE, AND VACATING AGENCY AND ITS ADMINISTRATOR, HEARINGS 17 Defendants. 18 19 REDWOOD CITY PLANT SITE, LLC, 20 Intervenor-Defendant. 21 INTRODUCTION 22 In these related challenges to a federal agency determination, the parties stipulate to 23 consolidation and the original requestor of the agency determination moves to intervene. 24 25 Intervention is unopposed. For the reasons below, the actions are CONSOLIDATED and the 26 motions to intervene are GRANTED. 27 1 STATEMENT 2 In March 2019, the United States Environmental Protection Agency issued a final 3 determination on the jurisdictional status of waters under the Clean Water Act within an area 4 known as the Redwood City Salt Ponds, adjacent to the San Francisco bay’s Westpoint Slough. 5 The jurisdictional determination found that the contested area did not include “waters of the 6 United States” under the CWA and thus was not entitled to the CWA’s protections. The 7 EPA’s conclusion was directly at odds, however, with a draft prepared by its San Francisco- 8 based Region 9 division in November 2016. Region 9’s draft found that most of the contested 9 area constituted “waters of the United States” for purposes of CWA jurisdiction. 10 The question of what weight the EPA owed the Region 9 draft lies at the center of these 11 two related actions challenging the EPA’s March 2019 determination. Both actions were filed 12 on September 24, 2019, one by a group of nonprofit environmental organizations (Baykeeper), 13 and the other by the State of California (California). Each complaint asks that the March 2019 14 determination be set aside and declared unlawful, arbitrary and capricious, an abuse of 15 discretion, unsupported by substantial evidence, and in violation of the Administrative 16 Procedure Act (Compl. California ¶ 5; Compl. Baykeeper ¶ 13). 17 As told by both complaints, the journey to the March 2019 determination began ten years 18 ago with a request for a preliminary jurisdictional determination by our proposed intervenor, 19 Redwood City Plant Site, LLC, also known as DMB Redwood City Saltworks. A different 20 entity, DMB Redwood City Holdings LLC, and an affiliate of Cargill, Incorporated, formed 21 Saltworks in 2006 as a joint venture to explore future uses of the salt pond site. 22 The current use of the site for commercial salt production, however, dates to the early 23 twentieth century when the salt ponds were constructed as part of a larger development of 24 commercial salt production facilities along the San Francisco bay and its tributaries. Once 25 established, the site consisted of an approximately 1,400-acre salt complex east of Redwood 26 Creek, surrounded by a levee system separating the site from natural tidal influences of the 27 bay. Cargill and its affiliates have owned the property since 1978 (Compl. Baykeeper ¶ 66). 1 In 2009, the Saltworks venture proposed converting the site to a mixed-use, high-density 2 development and partial tidal-restoration project. In conjunction with a permit application it 3 filed with Redwood City, Saltworks requested that the Army Corps of Engineers prepare a 4 non-binding, preliminary determination under the CWA for the area (Decl. Kane ¶ 18). 5 In 2010, the Corps issued the requested determination finding that wetlands and other 6 waters on the site may be jurisdictional under the CWA. Facing public opposition to the 7 development and uncertainty regarding CWA jurisdiction, Saltworks withdrew its Redwood 8 City permit application in 2012 (Compl. Baykeeper ¶ 87). 9 A month later, however, Saltworks requested a binding jurisdictional determination for 10 the site from both the Corps and the EPA. Initially, the EPA decided to provide only guidance 11 to the Corps. But, when the Corps told the EPA three years later that it would find the waters 12 were non-jurisdictional, the EPA intervened, reserving the final determination for itself. 13 In November 2016, EPA Region 9 completed its draft decision finding that most of the 14 waters fell within the jurisdiction of the CWA. EPA headquarters did not finalize Region 9’s 15 draft and Saltworks’ pending request remained open until March 2019, when the EPA issued 16 its final determination going the other way. The Baykeeper and California actions ensued. 17 Prior to the initial case management conference, Saltworks moved to intervene in both 18 actions. Although California and the Baykeeper plaintiffs would not stipulate to Saltworks’ 19 intervention prior to Saltworks’ motions, both eventually filed statements of non-opposition. 20 ANALYSIS 21 1. STIPULATION TO CONSOLIDATE CASES 22 Under Rule 42(a), a district court may consolidate actions if they involve a common 23 question of law or fact. “The district court, in exercising its broad discretion to order 24 consolidation of actions presenting a common issue of law or fact under Rule 42(a), weighs the 25 saving of time and effort consolidation would produce against any inconvenience, delay, or 26 expense that it would cause.” Huene v. United States, 743 F.2d 703, 704 (9th Cir. 1984). 27 Here, the California and Baykeeper actions involve the same defendants along with 1 the same CWA jurisdictional determination, seek the same remedy, and will be reviewed based 2 on the same administrative record. Thus, this order finds that the efficiency benefits of 3 consolidation outweigh any inconvenience, delay, or prejudice any party would suffer. 4 2. MOTIONS TO INTERVENE 5 Intervention as of right is governed by Rule 24(a), which provides that on timely motion, 6 a court must permit anyone to intervene in an action who: 7 . . . claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the 8 action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately 9 represent that interest. 10 Thus, a movant seeking to intervene as of right in a pending lawsuit must satisfy four 11 requirements. The movant must show that: 12 (1) it has a significant protectable interest relating to the property or transaction that is the subject of the action; (2) the disposition of the 13 action may, as a practical matter, impair or impede the [movant’s] ability to protect its interest; (3) the [movant] is timely; and (4) the 14 existing parties may not adequately represent the [movant’s] interest. 15 United States v. Los Angeles, 288 F.3d 391, 397 (9th Cir. 2002) (citation omitted). Rule 24(a) 16 is underscored by a “liberal policy in favor of intervention.” Ibid. 17 Saltworks satisfies each of Rule 24(a)’s four requirements and no parties oppose its 18 intervention. First, Saltworks demonstrates a significant protectable interest in this action. 19 The interest requirement’s purpose is to involve “as many apparently concerned persons as is 20 compatible with efficiency and due process.” Portland Audubon Society v. Hodel, 866 F.2d 21 302, 308 (9th Cir. 1989). Saltworks initiated the jurisdictional determination process and the 22 extent of such jurisdiction over the salt ponds is relevant to its purpose of exploring future 23 development options. And, to the extent Saltworks represents Cargill’s interests, Cargill 24 maintains ownership interests in the salt ponds that will be directly affected by a decision in 25 this litigation (Decl. Kane ¶ 16). While the interests of a joint venture’s member’s affiliate 26 may be too attenuated to stand in for the joint venture’s interest elsewhere; here, Saltworks’ 27 1 representation of Cargill’s interests will benefit the efficient resolution of this dispute. 2 Portland Audubon Society, 866 F.2d at 308. 3 Second, Saltworks’ interests may be impaired or impeded by the disposition of this 4 litigation. Our court of appeals “follows the guidance of the Rule 24 advisory committee notes 5 that state that ‘[i]f an absentee would be substantially affected in a practical sense by the 6 determination made in an action, he should, as a general rule, be entitled to intervene.” Sw. 7 Ctr. for Biological Diversity v. Berg, 268 F.3d 810, 822 (9th Cir. 2001). As stated above, a 8 decision in this litigation will affect Saltworks significant protectable interests. 9 Third, Saltworks’ motion is timely. In evaluating the timeliness of a motion to intervene, 10 we consider “(1) the stage of the proceeding at which an applicant seeks to intervene; (2) the 11 prejudice to other parties; and (3) the reason for and length of the delay.” United States v. 12 Washington, 86 F.3d 1499, 1503 (9th Cir. 1996). Saltworks sought stipulations to intervene 13 well before the initial case management conference and no parties object to its intervention. 14 Fourth, the current parties do not adequately represent Saltworks’ interests. Our court of 15 appeals requires only a “minimal” showing to establish inadequacy. Sw. Ctr. for Biological 16 Diversity, 268 F.3d at 823. While the government is defending the March 2019 jurisdictional 17 determination, the broad balance of environmental, administrative, public, and other interests 18 the government must consider in responding to the claims differ markedly from Saltworks’ 19 specific interests in protecting its property rights and investments. 20 Saltworks has satisfied the elements set forth in Rule 24(a). This order need not engage 21 in a permissive intervention analysis under Rule 24(b). 22 23 24 25 26 27 1 CONCLUSION 2 For the reasons stated above, the California and Baykeeper actions are CONSOLIDATED 3 and Saltworks’ motions to intervene are GRANTED. Going forward, all filings shall be made 4 using the caption used for this order and shall be filed only in Case No. 19-05941. This order 5 shall be the final filing in Case No. 19-05943. The January 29 hearing on the motions to 6 intervene in both actions are VACATED. 7 8 IT IS SO ORDERED. 9 10 Dated: January 15, 2020. 11 □□ —f>Chre= — IAM ALSUP UNITED STATES DISTRICT JUDGE 15 16 = 17 Z 18 19 20 21 22 23 24 25 26 27 28