Opinion
Case No. 4:04-CV-95.
January 25, 2005
ORDER
In accordance with the Court's Opinion of this date;
IT IS HEREBY ORDERED that Intervening Defendants Little River Band of Ottawa Indians and Manistee Citizens for Responsible Development, Inc.'s Motion to Strike (Dkt. No. 54) is GRANTED and the referenced exhibit is STRICKEN. IT IS FURTHER ORDERED that Plaintiff Manistee Salt Works Development Corporation's Objections (Dkt. No. 42) and the Sierra Club's Appeal (Dkt. No. 46) are DENIED and the Order of October 19, 2004 is AFFIRMED.
OPINION
This is the opening chapter of what portends to be a litigation brawl. Plaintiff the Manistee Salt Works Development Corporation wants to build a coal-fired power plant within the City of Manistee to produce power and make money for its shareholders. The property is located on the Manistee Lake shoreline at the site of a retired salt plant and an existing coal-fired plant. Defendant City of Manistee has denied a special use permit as to the property because Plaintiff would not agree to many special use conditions insisted upon by the City. Plaintiff has charged in this lawsuit that the conditions go beyond the City's permitting authority and the insistence upon the conditions constitutes a violation of Plaintiff's constitutional rights under the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment. Plaintiff has also sued under state statute for a declaratory judgment and the payment of consulting fees and expenses.Today's skirmish is a preliminary tussle about who gets to the join the fight. The contestants include the Little River Band of Ottawa Indians ("LRB"), a federally recognized Indian tribe. It wants to intervene in order to protect not only the environmental integrity of its members' surrounding lands (the lakeshore and nearby waters), but also its property value and its economic interests in its treaty rights to fish in navigable waters. Also wanting to join the fray is the Manistee Citizens for Responsible Development, Inc. ("MCRD") — a non-profit corporation whose members want to insure the environmental integrity and property value of their lands, their own health, and the economic viability of their community as a place for recreational and sporting activities. Finally, there is the Sierra Club, whose reputation proceeds it as a non-profit environmental group desiring protection of habitat and lands for the enjoyment of its members and the benefit of society at large. The Sierra Club recognizes that it does not have as strong of a local interest in this suit as the other proposed intervenors, but it does have special expertise in all things biological and a stronger interest in the regional aspect of this suit (meaning the potential of the plant to have far flung environmental effects on its members, including, for example, the disruption of pacific salmon migration).
United States Magistrate Judge Ellen S. Carmody, after hearing, entered an Opinion and Order which granted Defendants LRB and MCRD's requests to intervene, but denied the request of the Sierra Club, instead conferring upon it the role of amicus curiae, a commentator in the front row, but not a contestant in the melee. To this Order, Plaintiff has objected — on the ground that LRB and MCRD should not be allowed to intervene since their legal interests do not concern the nature and scope of the claims pled in the Complaint. Proposed Intervenor the Sierra Club has also appealed the decision on the ground that its legal interests are sufficient such that it should be permitted intervention under the case law of the Sixth Circuit Court of Appeals. Added to the mix is Defendant LRB and MCRD's Motion to Strike, which asks the Court to strike and not consider one exhibit (Ex. C) attached to Plaintiff's Objections to the intervention Order.
STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 636(b)(1)(A), the review of a magistrate judge's pretrial orders is limited to whether the orders are "clearly erroneous or contrary to law." See United States v. Raddatz, 447 U.S. 667, 673 (1980); Flournoy v. Marshall, 842 F.2d 875, 876-77 (6th Cir. 1988). This standard is necessarily deferential; it does not permit reversal unless the reviewing court is left with the definite and firm conviction that an error has been made. See United States v. Kellams, 26 F.3d 646, 648 (6th Cir. 1994) (citing Anderson v. Bessemer City, 470 U.S. 564, 573-74 (1985)); Chakales v. Comm'r of Internal Revenue, 79 F.3d 726, 728 (8th Cir. 1996).
Though the parties' briefing assumes for the most part that a "clearly erroneous" standard applies, Plaintiff has argued in connection with the Motion to Strike that an intervention motion is not a "pretrial" matter within the meaning of 28 U.S.C. § 636(b)(1)(A). The case cited by Plaintiff for this proposition is New York Chinese TV Programs, Inc. v. U.E. Enterprises, Inc., 996 F.2d 21, 25 (2d Cir. 1993), which did apply a de novo review standard to an intervention decision. However, the U.E. Enterprises decision is not as clear as one might suppose. In it, the issue was whether there was a valid consent to magistrate judge case assignment pursuant to section 636(c). The Second Circuit found that, in the absence of a valid consent, a report and recommendation was required. The Second Circuit did not consider or analyze whether an intervention motion itself was a "pretrial" matter within section 636(b)(1). Other cases which have expressly considered this question have determined that an intervention decision is a pretrial matter. See United States v. Certain Real Property Premises, 751 F. Supp. 1060, 1061 (E.D.N.Y. 1989); United States v. W.R. Grace Co.-Conn. 185 F.R.D. 184, 187 (D.N.J. 1999) (citing Michaels Stores Inc. v. Castle Ridge Plaza Assocs., 6 F.Supp.2d 360 (D.N.J. 1998); Holloway v. Whaley, 116 F.R.D. 675 (D.N.J. 1987)); see also Curry v. Regents of Univ. of Minn., 167 F.3d 420, 421-22 n. 2 (8th Cir. 1999). The reason for the uniformity of these decisions is that a denial of intervention does not dispose of any claim. It simply determines whether a party may raise a claim in a given lawsuit. The same party is free to file another suit in the same or different forum asserting any legitimate claims for which there is standing and subject matter jurisdiction. For these reasons, the Court determines that an intervention decision is a "pretrial matter" under section 636(b)(1) subject to "clearly erroneous" review.
LEGAL ANALYSIS
Round one of this preliminary asks which exhibits may be considered as part of the underlying record for the purpose of determining whether the Order was clearly erroneous. Intervening-Defendants LRB and MCRD argue that it is improper to permit additional evidence which was not before the Magistrate Judge at the time of the decision as to an appeal of the intervention decision. Cited in favor of this argument is the Third Circuit's well-reasoned decision in Haines v. Liggett Group, Inc., 975 F.2d 81, 91-93 (3d Cir. 1992), which explained that the use of the term "appeal" in the statutory language meant, consistent with usual appellate review, that the district court's review of a magistrate judge is pretrial decision would be much more limited than the de novo review applicable to dispositive rulings and should be limited to record evidence. Plaintiff's counter-argument, which the Court has rejected above, is that an intervention decision is not a dispositive ruling. Therefore, the Motion to Strike will be granted and Exhibit C will not be considered as part of the appellate review.
Round two asks whether, in light of the existing record, the Magistrate Judge's decisions as to intervention are "clearly erroneous." In reviewing this question, the Court examines the pertinent factors under the Sixth Circuit case law: namely, (1) whether the motion was timely; (2) whether the proposed intervenor has a substantial legal interest in the subject matter of the case; (3) the ability of the intervenor to protect the interest in the absence of intervention; and (4) the extent to which the interest may not be adequately represented by other parties. Jansen v. City of Cincinnati, 904 F.2d 336, 340 (6th Cir. 1990); Grutter v. Bollinger, 188 F.3d 394, 397-98 (6th Cir. 1999).
Regarding these factors, the Court determines that: (1) the intervention motions were filed timely; (2) each of the proposed intervenors has a "substantial legal interest" in the subject matter of the suit, though Defendants LRB and MCRD's legal interests, see, e.g., Joseph Skillken Co. v. City of Toledo, 528 F.2d 867, 874-75 (6th Cir. 1975), vacated on other grounds, 429 U.S. 1068 (1977); Vestevich v. West Bloomfield Twp., 630 N.W.2d 646, 648-49 (Mich.Ct.App. 2001); (which include the value of their neighboring lands, the value of treaty rights, and the protection of their memberships' health) are much more substantial than the more general environmental and aesthetic interests advanced by the Sierra Club; (3) all of the proposed intervenors' legal interests may be impaired by the suit; (4) Defendant City of Manistee would not adequately protect LRB and MCRD's legal interests without intervention (given Defendant City of Manistee's past reliance on these Defendants as a source of information and given the limited resources of the City to defend the suit), though Defendants LRB and MCRD, which have raised the same variety of environmental, aesthetic, recreational and air and water quality issues asserted by the Sierra Club, would adequately protect the Sierra Club's legal interests (including those which are regional in nature), especially given the Sierra Club's participation as amicus curiae. See Michigan State AFL-CIO v. Miller, 103 F.3d 1240, 1247 (6th Cir. 1997).
Although the Court is not granting the Sierra Club's appeal, the Court shares its view that the legal interests it has asserted are "substantial legal interests" for the purposes of the Rule 24 analysis. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 179-84 (2000) (citing Sierra Club v. Morton, 405 U.S. 727, 735 (1972)); American Canoe Ass'n, Inc. v. City of Louisa Water Sewer Comm'n, 389 F.3d 536, 541 (6th Cir. 2004). For instance, the Sierra Club includes some 700,000 members many of whom ( see, e.g., Affidavit of Monica Evans) live nearby Manistee and whose use and aesthetic appreciation of areas surrounding Manistee may be potentially affected by the permitting sought by Plaintiff. The Court also finds that the Sierra Club has participated in the permitting process.
Plaintiff has argued that zoning cases do not provide a basis for a finding as to a substantial legal interest as to land use permitting cases. Though this may be true to a degree, the permitting at issue has a much more significant effect on land value, use and enjoyment than the typical zoning decision. Thus, it is consistent with Michigan law to interpret it as granting land owners a "substantial legal interest" in challenging such permitting. The first rule of interpreting the common law (in the absence of clear statutory direction) is that it should make sound judicial sense. This is also consistent with the Vestevich decision which reminds the reader that, under Michigan law, the rules of intervention are to be liberally construed in favor of intervention. Vestevich, 630 N.W.2d at 649.
As such, the Court determines overall that the Magistrate Judge's decision to permit LRB and MCRD to intervene as of right under Rule 24(a), but not to permit the Sierra Club to intervene, was not clearly erroneous. Allowing the Sierra Club's amicus curiae status also gives the Court the benefit of the Sierra Club's research and commentary on environmental, air and water quality and habitat issues, without the burden of an additional party.
Plaintiff has argued against intervention by any new party on the premise that the environmental information championed by them is not part of the subject matter of the lawsuit. Plaintiff views the subject matter of the lawsuit as the special use permitting process and the intervenors' legal interests as irrelevant because they are not directly affected by a lawful decision to grant or deny a permit ( i.e., Plaintiff believes that the intervenors' interests are more aptly expressed as part of an Environmental Protection Agency ("EPA") or Michigan Department of Environmental Quality ("MDEQ") administrative hearing process concerning environmental permitting). Underlying this argument is Plaintiff's central notion that the environmental conditions insisted upon by the City for permitting were unlawful as part of the City's permitting process. Whether or not Plaintiff's "narrow" view of the case will or will not win the day cannot be determined presently-we are just preparing the score cards now, not writing the totals. When it is decided, however, the Court will be confident that it has reached the correct conclusion in large part because it has allowed the participation of LRB and MCRD in the proceedings so as to foster keen argument from parties whose interests are at stake.
Plaintiff's counter-argument that allowing these parties to participate is a waste of tax payer resources assumes that the tax payer is not interested in the environmental objections of these litigants. (Pl.'s Br. in Supp. of Objections, at 18, citing Sierra Club v. Envtl. Prot. Agency, 338 F.3d 516, 518 (7th Cir. 2004)). This is far from a safe assumption since groups like MCRD are composed of local tax payers. The Court prefers these Defendants' participation because it creates a truly adversarial litigation in which to resolve the issues pled. This is why such cases as Miller and Vestevich take a liberal view of intervention — to insure that a case is not decided without argument from all interested parties. Any adequate system of due process fosters, not discourages, this kind of participation in deliberative judicial processes.
Round three of the legal analysis asks whether the Sierra Club's request for intervention should be granted permissively under subparagraph (b)(2) of Rule 24, which permits permissive intervention when "an applicant's claim or defense and the main action have a question of law or fact in common." As to permissive intervention, the Magistrate Judge denied the Sierra Club's request on the ground that its interests were adequately protected by LRB and MCRD and by its abilities to proffer arguments as amicus curiae. In light of the Court's above findings, the Court determines that the findings by the Magistrate Judge as to permissive intervention were not clearly erroneous. The case cited by the Sierra Club in favor of its permissive intervention argument, Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094, 1111 (9th Cir. 2002), is also distinguishable. Kootenai Tribe did not involve a situation, like this one, in which the Sierra Club's interests were adequately protected by other citizen/environmental groups whose interests in the litigation were more substantial, local and direct than those of the Sierra Club. As such, that decision should not be followed in this case.
CONCLUSION
The appeals are denied. In the respective corners are the Manistee Salt Works Development Corporation, the City of Manistee, the Little River Band of Ottawa Indians, and the Manistee Citizens for Responsible Development, Inc. May the best argument win.