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  • 1. Case 1:11-cv-00307-AWT Document 116 Filed 04/14/12 Page 1 of 16 PageID #: 6503 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF HAWAII 10 11 HONOLULUTRAFFIC.COM; CLIFF ) Civ. No. 11-00307 AWT SLATER; BENJAMIN CAYETANO; ) 12 WALTER HEEN; HAWAII’S ) ORDER ON MOTION TO AMEND AND THOUSAND FRIENDS; THE SMALL ) MOTION TO INTERVENE 13 BUSINESS HAWAII ) ENTREPRENEURIAL EDUCATION ) 14 FOUNDATION; RANDALL W. ROTH; ) and DR. MICHAEL UECHI, ) 15 ) Plaintiffs, ) 16 ) vs. ) 17 ) FEDERAL TRANSIT ) 18 ADMINISTRATION; LESLIE ) ROGERS, in his official capacity as ) 19 Federal Transit Administration Regional ) Administrator; PETER M. ROGOFF, in ) 20 his official capacity as Federal Transit ) Administration Administrator; UNITED ) 21 STATES DEPARTMENT OF ) TRANSPORTATION; RAY LAHOOD, ) 22 in his official capacity as Secretary of ) Transportation; THE CITY AND ) 23 COUNTY OF HONOLULU; and ) WAYNE YOSHIOKA, in his official ) 24 capacity as Director of the City and ) County of Honolulu Department of ) 25 Transportation, ) ) 26 Defendants. ) ) 27 ) ) 28
  • 2. Case 1:11-cv-00307-AWT Document 116 Filed 04/14/12 Page 2 of 16 PageID #: 6504 1 Pending before the Court are: (1) Plaintiffs’ Motion for Leave to Amend 2 Complaint (Doc. 59); and (2) a Motion to Intervene as Defendants (Doc. 61). For the 3 reasons stated below, both motions are granted. 4 I. Background 5 Plaintiffs filed this action on May 12, 2011, alleging that the Final Environmental 6 Impact Statement/Section 4(f) Evaluation (“FEIS”) and Record of Decision (“ROD”) 7 approving the Honolulu High-Capacity Transit Corridor Project (“Rail Project”) do not 8 comply with the requirements of the National Environmental Policy Act (“NEPA”), 9 Section 4(f) of the Department of Transportation Act (“Section 4(f)”), the National 10 Historic Preservation Act, and the regulations implementing those statutes. (Compl., 11 Doc. 1). This Court’s Rule 16 Scheduling Order provided that Plaintiffs were permitted 12 to file any motion to amend the Complaint or add parties by January 2, 2012. (Doc. 66). 13 The Scheduling Order also provided that any proposed intervenors would have until 14 January 2, 2012 to move to intervene in the lawsuit. (Id.) 15 A. Plaintiffs’ Motion to Amend 16 On December 29, 2011, Plaintiffs filed a motion for leave to file an amended 17 complaint. (Mot. to Amend, Doc. 59). The attached Proposed First Amended Complaint 18 (“Proposed FAC”) makes three alterations to the original Complaint (Doc. 1): (1) the 19 addition of a new plaintiff, The Outdoor Circle (Doc. 59-1 at 20-21, ¶ 15); (2) the 20 addition of the phrase “for example” three times in Count 6 (Id. at 63-64, ¶ 107); and (3) 21 the insertion of a new paragraph in Count 7, which states, “The project would use Section 22 4(f) Resources” (Id. at 64, ¶ 110).1 According to the Proposed FAC, The Outdoor Circle 23 is a non-profit organization dedicated to protecting Hawaii’s environment, whose 24 members submitted comments on the documents released in support of the Rail Project. 25 (Id. at 20-21, ¶ 15). Plaintiffs assert that their additions to Count 6 were intended to be 26 “slight clarifications,” indicating that the resources identified in ¶ 107 of their original 27 1 28 Defendants do not oppose the addition of ¶ 110 to the Proposed FAC. -2-
  • 3. Case 1:11-cv-00307-AWT Document 116 Filed 04/14/12 Page 3 of 16 PageID #: 6505 1 Complaint were only “illustrative examples (rather than complete lists) of the historic 2 properties about which Plaintiffs are concerned.” (Id. at 6). 3 The City and County of Honolulu and Wayne Yoshioka, the Director of 4 Honolulu’s Department of Transportation, (together, “City Defendants”) oppose 5 Plaintiffs’ Motion to Amend on grounds that the Proposed FAC impermissibly adds new 6 claims barred by the applicable statute of limitations and violates Fed. R. Civ. P. 8(a) by 7 failing to provide notice to Defendants of Plaintiffs’ Section 4(f) claims. (Resp. to Mot. 8 to Amend, Doc. 73). The Federal Transit Administration (“FTA”), the United States 9 Department of Transportation, Leslie Rogers, Peter M. Rogoff, and Ray LaHood 10 (collectively, “Federal Defendants”) join the City Defendants’ opposition to the Motion to 11 Amend. (Doc. 74). 12 B. Motion to Intervene as Defendants 13 On January 3, 2012, Faith Action for Community Equity (“FACE”), the Pacific 14 Resource Partnership (“PRP”), and Melvin Uesato (collectively, “Proposed Intervenors”) 15 moved to intervene as Defendants. (Mot. to Intervene, Doc. 61).2 Proposed Intervenors 16 move to intervene as of right under Fed. R. Civ. P. 24(a)(2) or, alternatively, with the 17 Court’s permission pursuant to Fed. R. Civ. P. 24(b)(1). (Id. at 7-30). Proposed 18 Intervenors also request that the Court take judicial notice of a report published by the 19 Oahu Metropolitan Planning Organization. (Doc. 62). 20 FACE is a faith-based, grassroots organization that advocates for the interests of 21 Hawaii’s low-income population. (Id. at 4). Members of FACE have publically 22 supported the Rail Project and FACE asserts that its members would benefit from the rail 23 system through the creation of affordable mass transportation, the opportunity for 24 transit-oriented affordable housing, and a reduction in air pollution. (Id. at 5). PRP is a 25 non-profit, joint labor (Hawaii Carpenters Union) management partnership. (Id. at 3). 26 27 2 This motion was filed within the time limits set out in the Rule 16 Scheduling 28 Order, as January 2, 2012 was a federal holiday. Fed. R. Civ. P. 6. -3-
  • 4. Case 1:11-cv-00307-AWT Document 116 Filed 04/14/12 Page 4 of 16 PageID #: 6506 1 PRP explains that it has been advocating for the Rail Project since its inception because it 2 will provide members of the union with construction jobs and affordable transportation, 3 and will decrease air pollution. (Id. at 4). Melvin Uesato is a resident of Oahu who 4 commutes from Kapolei to Honolulu every Monday through Friday by bus or car; Uesato 5 claims he will benefit from the Rail Project because it will provide him an affordable 6 means of transportation and allow him more time to rest and to spend at home with his 7 wife. (Id. at 5-6). 8 Plaintiffs oppose the Motion to Intervene. (Doc. 79 at 4-10). City Defendants 9 support the motion, asserting that City Defendants “do not and cannot represent the 10 distinct personal interests” of Proposed Intervenors, because City Defendants represent 11 the broad interests of local government in the Rail Project, while Proposed Intervenors 12 have “personal and unique” interests in jobs and transportation for their members. (Doc. 13 77). Federal Defendants take no position on Proposed Intervenors’ motion, except to 14 request that, if intervention is granted, conditions be imposed upon Proposed Intervenors’ 15 participation in the suit. (Doc. 78 at 2). 16 II. Plaintiffs’ Motion to Amend 17 A. Legal Standard 18 Fed. R. Civ. P. 15(a)(2) provides that, after a responsive pleading has been filed, “a 19 party may amend its pleading only with the opposing party’s written consent or the 20 court’s leave.” Rule 15(a)(2) further states that the court should “freely give leave when 21 justice so requires.” Leave to amend lies within the sound discretion of the trial court. 22 DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 185-86 (9th Cir. 1987) (quoting United 23 States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981)). The underlying purpose of Rule 15 is 24 to facilitate decision on the merits, rather than on the pleadings or technicalities, and Rule 25 15’s policy favoring amendments to pleadings should accordingly be applied with 26 “extreme liberality.” Id. at 979. 27 However, a district court need not grant leave to amend where the amendment: (1) 28 prejudices the opposing party; (2) is sought in bad faith; (3) results in undue delay in -4-
  • 5. Case 1:11-cv-00307-AWT Document 116 Filed 04/14/12 Page 5 of 16 PageID #: 6507 1 litigation; or (4) is futile. AmerisourceBergen Corp. v. Dialysist West, Inc., 465 F.3d 946, 2 951 (9th Cir. 2006). Prejudice to the opposing party is the factor given the greatest 3 weight. Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). 4 Absent prejudice or a strong showing of any of the remaining factors, there exists a 5 presumption in favor of granting leave to amend. Id. 6 B. Statute of Limitations and Additions to ¶ 107 7 Futility of amendment can, by itself, justify the denial of a motion for leave to 8 amend. United States ex. rel. Lee v. SmithKline Beecham, Inc., 245 F.3d 1048, 1052 (9th 9 Cir. 2001) (quoting Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995)). Amending a 10 complaint to add a claim after the statute of limitations has run is futile. See Sackett v. 11 Beaman, 399 F.2d 884, 890 (9th Cir. 1968). The 180-day statute of limitations on the 12 filing of challenges to the FTA’s approval of the Rail Project expired on July 25, 2011. 13 23 U.S.C. § 139(l)(1). Plaintiffs’ Complaint was filed on May 15, 2011. (Doc. 1). The 14 Proposed FAC was not filed until December of 2011. (Doc. 66). 15 Fed. R. Civ. P. 15(c)(1)(B) provides that a new claim that would otherwise be 16 barred by the statute of limitations “relates back” to the date of filing the original pleading 17 when “the amendment asserts a claim or defense that arose out of the conduct, 18 transaction, or occurrence set out – or attempted to be set out – in the original pleading.” 19 Even if Defendants are correct that Plaintiffs’ addition of the phrase “for example” to ¶ 20 107 creates “new claims” under Section 4(f), Plaintiffs’ additions to ¶ 107 satisfy the Rule 21 15(c)(1)(B) relation back test.3 22 The “relation back” doctrine is applied liberally, although there must be some 23 basis for its application. Percy v. S.F. Gen. Hosp., 841 F.2d 975, 980 (9th Cir. 1988). 24 “Claims arise out of the same conduct, transaction, or occurrence if they ‘share a common 25 26 3 Because Plaintiffs’ additions to ¶ 107 satisfy the more stringent Rule 27 15(c)(1)(B) test for an amendment to a pleading, the Court need not decide today whether Plaintiffs’ alterations to ¶ 107 constitute “new claims” or merely provide new factual support 28 for claims already asserted in the original Complaint. -5-
  • 6. Case 1:11-cv-00307-AWT Document 116 Filed 04/14/12 Page 6 of 16 PageID #: 6508 1 core of operative facts’ such that the plaintiff will rely on the same evidence to prove each 2 claim.” Williams v. Boeing Co., 517 F.3d 1120, 1133 (9th Cir. 2008). By requiring a 3 common core of operative facts, courts ensure that the adverse party had fair notice of the 4 transaction, occurrence, or conduct called into question. Martell v. Trilogy, Ltd., 872 5 F.2d 322, 325 (9th Cir. 1989). In other words, the defendant does not need to have notice 6 of the specific claims added to the amended complaint, but merely the facts that formed 7 the basis for those claims. Id. at 326. 8 Plaintiffs’ amendments to ¶ 107 do not open up an unbounded universe of Section 9 4(f) sites to challenge; the language of all of the claims in ¶ 107 is specifically limited to 10 sites about which the FEIS drew a conclusion. (See Doc. 159-1 at 63-64, ¶ 107; see also 11 FEIS at 5–11-13). As a result, only conclusions regarding sites specifically enumerated 12 in the FEIS’ chapter on Section 4(f) could be subject to challenge under the Proposed 13 FAC. The fact that these Section 4(f) sites were actually analyzed during the 14 administrative process provides good evidence that Defendants had notice that these 15 Section 4(f) sites could be subject to challenge in this lawsuit. The key point is that 16 Plaintiffs’ Section 4(f) claims, old or new, all arise out of the same “occurrence” – the 17 publication of the FEIS. Moreover, the same universe of facts – the administrative record 18 – will be applicable to both the old claims and the new claims. See S.C. Wildlife Fedn v. 19 Limehouse, 2009 WL 2244210, at *3 (D.S.C. 2009). The Court therefore concludes that 20 Plaintiffs’ amendments to ¶ 107 in the Proposed FAC are not barred by the statute of 21 limitations. 22 C. Fed. R. Civ. P. 8(a)(2) and Additions to ¶ 107 23 Defendants argue that Plaintiffs’ additions to ¶ 107 constitute a violation of Fed. R. 24 Civ. P. 8(a)(2), which requires that a pleading contain a short and plain statement of the 25 claim showing that the pleader is entitled to relief. See Swierkiewicz v. Sorema N.A., 534 26 U.S. 506, 512 (2002) (explaining that Rule 8(a)(2) requires a statement that gives the 27 defendant fair notice of the plaintiff’s claim and the grounds upon which it rests). As 28 already described, the claims in ¶ 107 are limited, by the paragraph’s own terms, to -6-
  • 7. Case 1:11-cv-00307-AWT Document 116 Filed 04/14/12 Page 7 of 16 PageID #: 6509 1 decisions made about those Section 4(f) sites listed in the FEIS. Plaintiffs simply cannot 2 raise an issue with respect to a Section 4(f) site that was not explicitly considered in the 3 FEIS based on the language in ¶ 107. Defendants thus have a cabin ed and manageable 4 universe of Section 4(f) sites to deal with in this challenge, and so have fair notice of 5 Plaintiffs’ claims. The Court therefore finds that ¶ 107, as amended, satisfies the pleading 6 requirements of Rule 8(a)(2). 7 D. Statute of Limitations and Addition of The Outdoor Circle 8 Finally, Defendants argue that the addition of The Outdoor Circle as a plaintiff 9 would create a new cause of action after the running of the statute of limitations. (Doc. 10 73 at 19-25). An amendment adding a party plaintiff “relates back” to the date of the 11 original complaint only when: (1) the original complaint gave the defendant adequate 12 notice of the claims of the newly proposed plaintiff; (2) the relation back does not 13 unfairly prejudice the defendant; and (3) there is an identity of interests between the 14 original and newly proposed plaintiff. Rosenbaum v. Syntex Corp., 95 F.3d 922, 935 (9th 15 Cir. 1996). 16 Defendants had adequate notice of the claims brought by The Outdoor Circle. The 17 Outdoor Circle’s membership commented during the notice-and-comment proceedings 18 leading up to the publication of the FEIS and ROD, and so Defendants were aware of The 19 Outdoor Circle’s existence and involvement in the administrative process leading up to 20 the filing of Plaintiffs’ Complaint. See Avila v. INS, 731 F.2d 616, 620 (9th Cir. 1984) 21 (observing that notice to the opposing party of the existence and involvement of the new 22 plaintiff is the “critical element” in deciding whether an amendment relates back to the 23 original claim). Given that the Rule 16 Scheduling Order submitted by the parties and 24 approved by the Court explicitly contemplated that Plaintiffs could move to add new 25 parties, Defendants were on also notice that additional interested parties could join the 26 suit. More importantly, The Outdoor Circle brings no new claims regarding the FEIS or 27 ROD independent of those claims already brought by Plaintiffs. As a result, Defendants 28 had adequate notice of every claim now brought by The Outdoor Circle at the time that -7-
  • 8. Case 1:11-cv-00307-AWT Document 116 Filed 04/14/12 Page 8 of 16 PageID #: 6510 1 the Complaint was first filed. 2 The addition of The Outdoor Circle would also not unfairly prejudice Defendants. 3 The Ninth Circuit has generally found unfair prejudice where amendment would require 4 additional or untimely discovery or would require the defendant to address new legal 5 theories. See, e.g., Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) 6 (finding prejudice where proposed amended complaint was filed five days before 7 discovery was to close); United States ex rel. Schumer v. Hughes Aircraft Co., 63 F.3d 8 1512, 1527 (9th Cir. 1995) vacated on other grounds, 520 U.S. 939 (1997) (finding 9 prejudice where amendment would have required defendant to address new legal theories 10 and perform “extensive” additional discovery); Morongo Band of Mission Indians v. 11 Rose, 893 F.2d 1074, 1079 (9th Cir. 1990) (finding prejudice where new claims would 12 have “greatly altered the nature of the litigation” and would have required an entirely new 13 course of defense at a late hour). 14 In contrast, Plaintiff’s motion was filed at an early point in this litigation, and 15 dispositive summary judgment motions have not yet been filed. The addition of The 16 Outdoor Circle will not create the need for additional discovery, because the relevant 17 evidence in this case is limited to the administrative record, which has already been 18 assembled. See In re TFT-LCD (Flat Panel) Antitrust Litig., 2011 WL 3738969, at *4 19 (N.D. Cal. 2011) (finding no prejudice where all of the previous discovery applied to the 20 new plaintiff and the new and old plaintiffs were strongly related). It is true that 21 Defendants may have to reassess their challenges to Plaintiffs’ Section 4(f) standing if 22 The Outdoor Circle is added as a plaintiff. But adding The Outdoor Circle will not 23 expand the number of Section 4(f) sites being challenged by Plaintiffs, because, as noted 24 above, Plaintiffs’ ¶ 107 challenge is limited to those sites actually listed and analyzed in 25 the FEIS. 26 There is also an identity of interests between existing Plaintiffs and The Outdoor 27 Circle. Identity of interest can be found when the “relief sought is sufficiently similar.” 28 Besig v. Dolphin Boating & Swimming Club, 683 F.2d 1271, 1278 (9th Cir. 1982). -8-
  • 9. Case 1:11-cv-00307-AWT Document 116 Filed 04/14/12 Page 9 of 16 PageID #: 6511 1 Privity between the new and old plaintiffs is not required; the new plaintiff must merely 2 be “similarly situated” to the original plaintiffs. See Immigrant Assistance Project of L.A. 3 Cnty. Fedn of Labor v. INS, 306 F.3d 842, 858 n.14 (9th Cir. 2002) (citing In re Glacier 4 Bay, 746 F. Supp. 1379, 1391 (D. Alaska 1990)); but see Young v. Lepone, 305 F.3d 1, 15 5 (1st Cir. 2002). The Outdoor Circle seeks the same relief as Plaintiffs and is similarly 6 situated to Plaintiffs in terms of its role and position in the notice-and-comment process 7 leading up to publication of the FEIS and ROD. The Court therefore concludes that the 8 addition of The Outdoor Circle as a plaintiff is not barred by the statute of limitations. 9 For the foregoing reasons, the Court grants Plaintiffs’ Motion to Amend in full. 10 III. Proposed Intervenors’ Motion to Intervene 11 A. Legal Standard 12 In order to intervene as of right, an intervenor must satisfy four requirements: (1) 13 the proposed intervenors must file a timely motion to intervene; (2) the proposed 14 intervenors must have a significantly protectable interest relating to the property or 15 transaction that is the subject of the action; (3) the proposed intervenors must be situated 16 such that disposition of the action may, as a practical matter, impair or impede the 17 proposed intervenors’ ability to protect that interest; and (4) proposed intervenors’ 18 interests must not be adequately represented by the current defendants. Fed. R. Civ. P. 19 24(a)(2); Arakaki v. Cayetano, 324 F.3d 1078, 1083 (9th Cir. 2003). Rule 24 traditionally 20 receives a liberal construction in favor of applicants for intervention; courts are guided 21 primarily by practical and equitable considerations in its application. Id. Failure to meet 22 any one of the four requirements is fatal to the application for intervention as of right, and 23 the court need not reach any of the other remaining elements if one is not satisfied. Perry 24 v. Proposition 8 Official Proponents, 587 F.3d 947, 950 (9th Cir. 2009). 25 Alternatively, Fed. R. Civ. P. 24(b)(1)(B) provides that “[o]n timely motion, the 26 court may permit anyone to intervene who . . . has a claim or defense that shares with the 27 main action a common question of law or fact.” A movant for permissive intervention 28 must demonstrate that she has satisfied three requirements: (1) an independent ground for -9-
  • 10. Case 1:11-cv-00307-AWT Document 116 Filed 04/14/12 Page 10 of 16 PageID #: 6512 1 jurisdiction; (2) a timely motion; and (3) a common question of law and fact between the 2 movants claim or defense and the main action. Freedom from Religion Found., Inc. v. 3 Geithner, 644 F.3d 836, 843 (9th Cir. 2011). 4 If the Court determines that the three requirements for permissive intervention are 5 satisfied, then the Court is also entitled to consider other factors in making its 6 discretionary decision. Spangler v. Pasadena City Bd. of Educ., 552 F.2d 1326, 1329 (9th 7 Cir. 1977). Under Fed. R. Civ. P. 24(b)(1)(3), “[i]n exercising its discretion, the court 8 must consider whether the intervention will unduly delay or prejudice the adjudication of 9 the original parties’ rights.” Other factors the Court is entitled to consider include: (1) the 10 nature and extent of the intervenors’ interests; (2) their standing to raise relevant legal 11 issues; (3) the legal position they seek to advance and its probable relation to the merits of 12 the cause; (4) whether the intervenors’ interests are adequately represented by other 13 parties; (5) whether intervention will prolong or unduly delay the litigation; and (6) 14 whether the parties seeking intervention will significantly contribute to the full 15 development of the underlying factual issues in the suit and to the just and equitable 16 adjudication of the legal issues presented. Id. 17 B. Intervention as of Right 18 Proposed Intervenors filed a timely motion to intervene in which they argue that 19 they have a number of significant protectable interests: (1) an interest in affordable and 20 equitable transportation that will reduce air pollution and encourage affordable housing; 21 (2) an interest arising out of FACE and PRP’s active support of the Rail Project since its 22 inception; and (3) PRP’s interests in the carpentry jobs that will be necessary to execute 23 the Rail Project and in its members’ existing contracts to work on the Rail Project. (Doc. 24 61 at 11-12). Proposed Intervenors also claim that disposition of this case may, as a 25 practical matter, impair or impede all of these interests by shutting down construction on 26 the Rail Project during the pendency of a new notice-and-comment process. (Id. at 23). 27 Plaintiffs do not contest these assertions; instead, Plaintiffs argue that Proposed 28 Intervenors are not entitled to intervention as of right because they are adequately - 10 -
  • 11. Case 1:11-cv-00307-AWT Document 116 Filed 04/14/12 Page 11 of 16 PageID #: 6513 1 represented by current Defendants. (See Doc. 79). 2 As a general matter, the burden on intervenors to show that existing parties 3 inadequately represent their interests is “minimal;” it is enough if the intervenors can 4 demonstrate that representation of their interests “may be” inadequate. Trbovich v. 5 United Mine Workers, 404 U.S. 528, 538 n.10 (1972). The court considers three factors 6 in determining the adequacy of representation: (1) whether the interest of a present party 7 is such that it will undoubtedly make all of a proposed intervenor’s arguments; (2) 8 whether the present party is capable and willing to make such arguments; and (3) whether 9 a proposed intervenor would offer any necessary elements to the proceeding that other 10 parties would neglect. Arakaki, 324 F.3d at 1086. 11 The most important of these factors is how the intervenors’ interests compare with 12 the interests of existing parties. Id. When an applicant and an existing party have the 13 “same ultimate objective,” there is a presumption in favor of adequacy of representation. 14 Id. A presumption in favor of adequacy of representation also applies when the 15 government is acting on behalf of a constituency that it represents. Id. Both of these 16 presumptions can be rebutted only by a compelling showing of inadequate representation. 17 Citizens for Balanced Use v. Mont. Wilderness Assn, 647 F.3d 893, 898 (9th Cir. 2011); 18 see also Arakaki, 324 F.3d at 1086 (“In the absence of a ‘very compelling showing to the 19 contrary,’ it will be presumed that a state adequately represents its citizens when the 20 applicant shares the same interest.”). Mere differences in litigation strategy do not 21 normally justify intervention. Id. 22 The Court concludes that FACE and Uesato have not overcome these 23 presumptions. Uesato’s stated interest is in faster, more affordable, and greener 24 transportation, but this is an interest also held by the general public and so it is likely that 25 City Defendants and Federal Defendants will take it into account in their defense of the 26 Rail Project. See Forest Conservation Council v. U.S. Forest Serv., 66 F.3d 1489, 1499 27 (9th Cir. 1995), abrogated on other grounds by Wilderness Soc. v. U.S. Forest Serv., 630 28 F.3d 1173, 1176-77 (9th Cir. 2011) (en banc) (observing that inadequate representation is - 11 -
  • 12. Case 1:11-cv-00307-AWT Document 116 Filed 04/14/12 Page 12 of 16 PageID #: 6514 1 most likely to be found when the applicant asserts a personal interest that does not belong 2 to the general public). 3 Moreover, both Uesato and FACE share the same “ultimate objective” as City and 4 Federal Defendants, which is to uphold the FEIS and ROD against the procedural 5 challenges brought by Plaintiffs, which would in turn allow the Rail Project to go 6 forward. Government Defendants are acting on behalf of both of the constituencies 7 represented by Uesato and FACE. As a result, these two Proposed Intervenors must make 8 a “compelling showing” of inadequate representation in order to rebut the presumption 9 that Defendants will adequately represent their interests. 10 PRP has an added economic interest in the enforcement of construction contracts 11 for the Rail Project into which its employer members have already entered and under 12 which its union member employees are employed. Courts have found that government 13 defendants and intervenors do not have the same “ultimate objective” where a proposed 14 intervenor has a more narrow economic interest at stake than the government. See Sw. 15 Ctr. for Biological Diversity v. Berg, 268 F.3d 810, 823-24 (9th Cir. 2001) (in ESA 16 challenge to conservation plans, government defendants had broader interests that could 17 diverge from applicant builders’ interests as private sector participants in those plans); 18 Forest Conservation Council, 66 F.3d at 1499 (in NEPA action, Forest Service must 19 represent a broader view than the “more narrow, parochial interests” of the State of 20 Arizona and a county in their contractually-protected rights to timber sale proceeds); 21 Sierra Club v. Espy, 18 F.3d 1202, 1207-08 (5th Cir. 1994) (government’s representation 22 of intervenor timber groups might be inadequate, because government must represent the 23 broad public interest, not just the economic concerns of the timber industry); W. 24 Watersheds Project v. Salazar, 2011 WL 4431813, at *3 (D. Idaho 2011) (where 25 government had to defend 600 individual land management decisions, it might protect 26 certain decisions at the risk of losing others, which would be directly contrary to the 27 interests of intervening land users). 28 In this case, however, PRP seeks exactly the same ultimate objective as do City - 12 -
  • 13. Case 1:11-cv-00307-AWT Document 116 Filed 04/14/12 Page 13 of 16 PageID #: 6515 1 Defendants and Federal Defendants, namely, to uphold the FEIS and ROD against 2 Plaintiffs’ procedural challenges. As a result, this case is distinguishable from the cases 3 cited above in which intervenors were found to have “narrow, parochial interests” not 4 adequately represented by the existing parties. See San Juan Cnty. v. United States, 503 5 F.3d 1163, 1203-04 (10th Cir. 2007) (en banc) (distinguishing the case before the court 6 from cases in which the government has “multiple interests to pursue” and “will not 7 adequately pursue the particular interest of the applicant for intervention”). Defendants 8 have only a single interest to pursue here, upholding the FEIS and ROD in their entirety, 9 and so Defendants are not faced with a choice between pursuing the “broad” public 10 interest and pursuing PRP’s “parochial” economic interests; the two interests are entirely 11 aligned. The presumption of adequate representation by Defendants thus has not been 12 rebutted by PRP. 13 To overcome the presumption of adequate representation, Proposed Intervenors 14 must make a “compelling showing” of inadequate representation. City Defendants have 15 stated that they will be unable to represent Proposed Intervenors’ interests. See Smith v. 16 Pangilinan, 651 F.2d 1320, 1325 (9th Cir. 1981) (stating that acknowledgment by a 17 present party that their interests differ from intervenors is evidence of inadequate 18 representation). However, given that Federal Defendants have not joined in that 19 statement, City Defendants’ claim that the City is unable to represent Proposed 20 Intervenors’ interests is not a “compelling” reason to find representation inadequate. 21 Proposed Intervenors also argue that their interests could potentially conflict with 22 Defendants’ interests for a number of reasons. (See Doc. 83 at 7-15). However, 23 speculation that the intervenors’ interests might, in the future, diverge from the interests 24 of the parties does not justify intervention as a full-fledged party. League of United Latin 25 American Citizens v. Wilson, 131 F.3d 1297, 1307 (9th Cir. 1997); Dept of Fair Empt 26 and Hous. v. Lucent Techs., 642 F.3d 728, 740 (9th Cir. 2011) (noting that “vague 27 speculation falls far short of a ‘very compelling showing’”). Proposed Intervenors make 28 no compelling showing of a current, concrete divergence of interests between the parties. - 13 -
  • 14. Case 1:11-cv-00307-AWT Document 116 Filed 04/14/12 Page 14 of 16 PageID #: 6516 1 2 Proposed Intervenors additionally suggest that they could help defend the FTA’s 3 evaluation of alternatives to the Rail Project. (See Doc. 83 at 10). However, the Court’s 4 review of the FTA’s evaluation of reasonable alternatives will be focused on the 5 administrative record. While Proposed Intervenors could help focus the Court’s attention 6 on parts of the record that highlight the FTA’s consideration of environmental justice 7 issues during the FEIS process, Proposed Intervenors present no evidence that the FTA 8 will be unable or unwilling to make those arguments itself. Proposed Intervenors also 9 claim that they will provide a necessary perspective in the remedial phase of litigation. 10 (See Doc. 83 at 12, citing Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743, 2757 11 (2010)). However, Proposed Intervenors’ interests could still be taken into account under 12 the “public interest” factor of the injunctive relief balancing test even if they were not 13 parties to the suit. 14 For all of these reasons, the Court concludes that Proposed Intervenors have not 15 made a compelling showing that Defendants will not adequately represent their interests 16 in upholding the FEIS and ROD against Plaintiffs’ challenges. Proposed Intervenors are 17 therefore not entitled to intervene as defendants as of right. 18 C. Permissive Intervention 19 Plaintiffs do not contest Proposed Intervenors’ assertion that they meet the Fed. R. 20 Civ. P. 24(b)(1)(B) requirements for permissive intervention; instead, Plaintiffs argue that 21 Proposed Intervenors should be denied permissive intervention based on factors within 22 the Court’s discretion. (Doc. 79). Plaintiffs assert that Proposed Intervenors’ interests are 23 already well-represented by the existing parties, that Proposed Intervenors will not help 24 develop the factual record or legal arguments, and that the addition of Proposed 25 Intervenors will cause additional delay. (Id.). 26 As analyzed in some detail above, Plaintiffs are correct that Proposed Intervenors 27 are adequately represented by Defendants. However, given that this case will be decided 28 on the basis of a fixed administrative record, permitting intervention is unlikely to - 14 -
  • 15. Case 1:11-cv-00307-AWT Document 116 Filed 04/14/12 Page 15 of 16 PageID #: 6517 1 prolong or delay litigation or prejudice the adjudication of the original parties’ rights. See 2 Fed. R. Civ. P. 24(b)(1)(3). Proposed Intervenors have also asserted a number of 3 important interests implicated in this litigation, including an interest in reliable, eco- 4 friendly transportation and an interest in the enforcement of existing government 5 construction contracts. Proposed Intervenors could meaningfully contribute to 6 Defendants’ efforts to direct the Court’s attention to relevant portions of the voluminous 7 administrative record, especially as it pertains to alternatives to the Rail Project that could 8 adversely impact populations represented by FACE and PRP. Finally, should such 9 proceedings become necessary, Proposed Intervenors deserve the opportunity to 10 participate in any remedial phase proceedings. The Court therefore concludes that the 11 discretionary factors weigh in favor of permitting Proposed Intervenors to intervene as 12 defendants in this case. The Court grants Proposed Intervenors’ Motion to Intervene 13 pursuant to Rule 24(b)(1)(B). 14 D. Request for Judicial Notice 15 A court may take judicial notice of a fact that is “not subject to reasonable dispute” 16 in that it is either generally known within the court’s territorial jurisdiction or “capable of 17 accurate and ready determination by resort to sources whose accuracy cannot reasonably 18 be questioned.” Fed. R. Evid. 201(b). The latter category includes matters of public 19 record. See Intri-Plex Techs., Inc. v. Crest Grp., Inc., 499 F.3d 1048, 1052 (9th Cir. 20 2007). Proposed Intervenors seek judicial notice of a March 2004 Report authored by the 21 Oahu Metropolitan Planning Organization, which is a public record. Accordingly, the 22 Court grants the request for judicial notice. 23 IV. Conclusion 24 For the reasons set forth above, 25 IT IS HEREBY ORDERED: 26 1. Plaintiffs’ Motion for Leave to Amend Complaint (Doc. 59) is granted. 27 2. Plaintiffs’ First Amended Complaint is deemed filed and served on all 28 Defendants who have appeared in the action as of this date, who are granted - 15 -
  • 16. Case 1:11-cv-00307-AWT Document 116 Filed 04/14/12 Page 16 of 16 PageID #: 6518 1 21 days within which to respond to the First Amended Complaint. 2 3. Proposed Intervenors’ Motion to Intervene (Doc. 61) is granted. As a 3 condition intervention, it shall be deemed that Proposed Intervenors agree 4 to be bouond by all prior orders made in this case (subject to the ordinary 5 right to appeal) and shall adhere to the deadlines set out in the Court’s Rule 6 16 Scheduling Order (Doc. 66). Proposed Intervenors’ response to the First 7 Amended Complaint is also due within 21 days of the date of this Order. 8 4. Proposed Intervenors’ Request for Judicial Notice (Doc. 62) is granted. 9 DATED this 14th day of April, 2012. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 16 -