Litigation Strategy Left Intervention Too Late

In a West Virginia chicken farmer’s suit challenging the EPA’s enforcement action against her for polluted runoff, the 4^th Circuit affirms a district court order refusing to allow the Chesapeake Bay Foundation to intervene as a defendant; CBF admits it gambled and lost in its litigation strategy of waiting to intervene.

Because plaintiff farmer had not obtained any permits for such discharges, the Environmental Protection Agency issued a compliance order in 2011 identifying violations of the Clean Water Act. In July 2012, plaintiff initiated her lawsuit against the EPA, requesting a declaration that the compliance order was invalid because the discharges from her farm constituted “agricultural storm water,” which is exempt from the CWA’s permitting requirements. A month later, the American Farm Bureau Federation and the West Virginia Farm Bureau jointly moved to intervene in the litigation as plaintiffs. The district court granted the joint motion. In December 2012, a group of five clean water advocacy groups likewise moved to intervene as defendants. Eight days later, the EPA withdrew its compliance order. About a month later, the parties jointly secured a stay of the lawsuit while they pursued settlement negotiations.

With no settlement reached, the EPA moved to dismiss the lawsuit in March 2013, contending that its withdrawal of the compliance order rendered the entire proceeding moot. The district court denied the motion to dismiss and granted the clean water groups’ motion to intervene.

The plaintiffs filed a joint motion for summary judgment. The next day, CBF made its first appearance in the underlying litigation, in a motion to intervene accompanied by an extensive memorandum and multiple exhibits that were outside the administrative record. CBF asserted a right to intervene pursuant to Fed. R. Civ. P. 24(a) or, alternatively, under Rule 24(b).

The district court denied the motion to intervene as not timely filed.

In order to properly determine whether a motion to intervene in a civil action is sufficiently timely, a trial court in this circuit must assess three factors: how far the underlying suit has progressed; the prejudice any resulting delay might cause the other parties; and why the movant was tardy in filing its motion.

When CBF moved to intervene, the proceedings below had reached a relatively advanced stage. Seven other parties had long since received permission to intervene and several months of settlement negotiations had occurred. The case had been stayed once and the court’s scheduling order extended twice. Summary judgment briefing had commenced. The prejudice factor also weighs against CBF intervention.

Finally, CBF was not at all unaware of what was transpiring in the district court. It candidly acknowledges it had closely monitored the proceedings in plaintiff’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. Stated plainly, CBF admits it gambled and lost in the execution of its litigation strategy.

In these circumstances, we cannot conclude the district court abused its discretion in denying the motion to intervene.

Judgment affirmed.

Alt v. U.S. Environmental Protection Agency (Traxler) No. 13-2200, July 14, 2014; USDC at Elkins, W.Va. (Bailey) Jon A. Mueller for appellant; James T. Banks for appellees. VLW 014-2-135, 10 pp.