U.S. v. 39.96 Acres of Land, More or Less, Situated in LaPorte County, State of Indiana

• Decision Date: 22 February 1985
• Docket Number: No. 84-1018,84-1018
• Parties: , 15 Envtl. L. Rep. 20,163 UNITED STATES of America, Plaintiff, and Save the Dunes Council, Inc., Proposed Intervening Plaintiff-Appellant, v. 36.96 ACRES OF LAND, MORE OR LESS, SITUATED IN the COUNTY OF LaPORTE, STATE OF INDIANA & Northern Indiana Public Service Company, & Unknown Owners, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 855

754 F.2d 855

1 Fed.R.Serv.3d 347, 15 Envtl. L. Rep. 20,163

UNITED STATES of America, Plaintiff, and Save the Dunes Council, Inc., Proposed Intervening Plaintiff-Appellant, v. 36.96 ACRES OF LAND, MORE OR LESS, SITUATED IN the COUNTY OF

LaPORTE, STATE OF INDIANA & Northern Indiana

Public Service Company, & Unknown

Owners, Defendants-Appellees.

No. 84-1018.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 24, 1984.

Decided Feb. 22, 1985.

Donald J. Evans, Evans & Evans, Valparaiso, Ind., for plaintiff.

Paul A. Rake, Eichhorn, Eichhorn & Link, Hammond, Ind., for defendants-appellees.

Before BAUER, WOOD and CUDAHY, Circuit Judges.

BAUER, Circuit Judge.

The district court denied the Save The Dunes Council's motion to intervene in the United States' condemnation action against the Northern Indiana Public Service Company. 100 F.R.D. 78. We affirm the denial of intervention.

I

The land involved in this case is a 36.96 acre tract bordering the southern edge of Lake Michigan. This area, commonly known as Crescent Dune, is situated between the Indiana Dunes National Lakeshore on the west, and one of Northern Indiana Public Service Company's (NIPSCO) generating stations on the east. The condemnation action underlying this case was instituted by the United States under the authority of the Indiana Dunes National Lakeshore Act, 16 U.S.C. Sec. 460u-12, which authorized the Secretary of the Interior to acquire Crescent Dune. Section 460u-12 placed strict time and monetary limitations on the Secretary's condemnation action. Among the limitations was the requirement that the property, excluding a sea wall, could not be purchased at a cost greater than $800,000, adjusted by the Consumer Price Index and excluding administrative costs. 16 U.S.C. Sec. 460u-12. NIPSCO has owned the land since 1932, which presently is subject to a mortgage to secure various bond instruments sold by NIPSCO. In 1976, the value of the land, including the sea wall, was approximately $1,762,000.

The Save The Dunes Council is an Indiana not-for-profit corporation. The Council, a public interest group incorporated in 1952, seeks legal protection for public use of the Indiana Dunes. Since its incorporation the Council has lobbied extensively for national legislation protecting the dunes and expanding the protected areas. The Council lobbied hard for the passage of the 1976 amendments to the Indiana Dunes Act, which authorized acquisition of Crescent Dune, and prepared the base map used to determine the official boundary information for the 1976 amendments.

Although the United States' condemnation action was filed in August 1978, the Council did not move to intervene until April 1982. ¹ The Council also filed a complaint for mandamus in the United States District Court for the District of Columbia and in the Northern District of Indiana against the Secretary of the Interior on October 19, 1983. These mandamus actions are still pending. On September 7 1983, the government and NIPSCO submitted to the trial court a stipulation and joint motion to dismiss. Following briefing and a hearing on the Council's motion to intervene, the district court denied the motion.

II

Four requirements must be met before intervention will be granted as of right. The application must be timely. The intervenor must show an interest relating to the property or transaction which is the subject of the action. The intervenor must show that the disposition may as a practical matter impair or impede the intervenor's ability to protect that interest. And, the intervenor must show that that interest is not adequately represented by existing parties. Gautreaux v. Pierce, 690 F.2d 616, 635 (7th Cir.1982). The proposed intervenors must satisfy each requirement before a court will grant the motion to intervene. CFTC v. Heritage Capital Advisory Services, Ltd., 736 F.2d 384, 386 (7th Cir.1984).

The district court found that the Council met only the first requirement of timeliness of the motion but failed to meet the other three requirements. The Council bases its challenge to the court's denial of intervention on the ground that its interest in Crescent Dune is legitimate, tangible and demonstrable, is unprotected by the parties to this action, and will be substantially impaired if the Council is denied intervention.

The district court examined the Council's alleged interest in the Crescent Dune and determined that "[w]hile the Council has played a laudatory role in the development of the Indiana Dunes National Lake Shore [sic], with respect to this tract of land, [the Council] is essentially a private citizen with no interest in the property sought to be condemned." Order at 5. Moreover, the district court determined that NIPSCO had the "paramount ... [and] only legal interest" in Crescent Dune. Id.

To obtain intervention as of right under Rule 24(a)(2), a proposed intervenor must show "a direct, significant legally protectable interest in the property or transaction subject to the action" in which intervention is sought. Wade v. Goldschmidt, 673 F.2d 182, 185 (7th Cir.1982) (per curiam) (citing Donaldson v. United States, 400 U.S. 517, 531, 91 S.Ct. 534, 542, 27 L.Ed.2d 580 (1971)). As the Wade court characterized the issue, the critical concern is not the "theoretical interests of proposed intervenors, ... 'but whether already initiated litigation should be extended to include additional parties.' " 673 F.2d at 184.

An eminent domain proceeding such as this action considers only two legal interests. The first interest is that of the sovereign to exercise the power of eminent domain, which is essential to a sovereign government, United States v. Carmack, 329 U.S. 230, 236, 67 S.Ct. 252, 254, 91 L.Ed. 209 (1946), and exercisable only by the legislature or as conferred by congressional enactment. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585-86, 72 S.Ct. 863, 865-66, 96 L.Ed. 1153 (1952). The second interest in an eminent domain proceeding is one of private ownership--essentially the ownership of the condemned property.

The interest of the sovereign in this case is that expressed in the Indiana Dunes National Lakeshore Act, Pub.L. 89-761, 80 Stat. 1309 (1966) (codified as amended at 16 U.S.C. Secs. 460u to 460u-23), to acquire and preserve for public use certain portions of the Indiana Dunes. This interest can be effectuated by the Secretary of the Interior only as authorized by Congress and only to the extent of appropriations from Congress. The Council cannot claim that its right to intervene derives from this sovereign authority to condemn property for public use. No entity, public or private, other than the legislature, can claim the sovereign authority to condemn property--a "direct, significant legally protectable interest"--unless Congress has delegated that authority to the party. Youngstown Sheet & Tube, 343 U.S. at 585, 72 S.Ct. at 865. Congress has not delegated such authority to the Council; the Secretary of the Interior is the only person to whom Congress has delegated the authority to condemn Crescent Dune. 16 U.S.C. Secs. 460u & 460u-12. The Council cannot, therefore, claim that its Rule 24(a) interest in the Crescent Dune is the same as that of the Secretary. Nor can the Council claim an ownership interest in the Crescent Dune. NIPSCO has the only claim to ownership of the Crescent Dune. The dune was acquired in fee by NIPSCO, together with other portions of its Michigan City, Indiana, generating station site in 1932. ²

The Council argues, however, that on the basis of Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), the Council's "intense concern for the National Lakeshore," Appellant's br. at 7, and "its members' personal aesthetic, conservational and recreational interest in the property," id. at 8, is a sufficient interest to allow intervention under Rule 24(a). Sierra Club is distinguishable, however, from the present case. Sierra Club arose under Section 10 of the Administrative Procedure Act (APA), 5 U.S.C. Sec. 702, and not under Rule 24(a). There is a qualitative difference between the "interest" which is sufficient for standing to bring an action under the APA and the "direct, significant legally protectable interest" required to intervene in a condemnation action. The "interest" which will satisfy Sierra Club is simply one "arguably within the zone of interest to be protected" by the statute. 405 U.S. at 733, 92 S.Ct. at 1365. The interest of a proposed intervenor, however, must be greater than the interest sufficient to satisfy the standing requirement. As the Supreme Court in Donaldson stated, the interest must be a "significantly protectable interest." 400 U.S. at 531, 91 S.Ct. at 542. This circuit has also defined the necessary interest as one that is direct, substantial, and legally protectable. Heyman v. Exchange National Bank of Chicago, 615 F.2d 1190, 1193 (7th Cir.1980).

While the Council's aesthetic and environmental interest in Crescent Dune may indeed be legitimate and demonstrable, we cannot say that it is direct, substantial, or legally protectable. Therefore, the Council's interest in "guaranteeing the preservation of [Crescent Dune's] natural beauty," Appellant's br. at 8, for public use is not the type of interest which justifies intervention under Rule 24(a). Wade v. Goldschmidt, 673 F.2d 182 (7th Cir.1982), is particularly appropriate in the present context. In Wade, several property owners brought an action against the United States Department of Transportation and the State of Illinois challenging the proposed construction of an expressway and bridge across their property. Several groups sought and were denied the right to intervene in the action. One of the groups denied intervention was an Illinois non-profit corporation formed specifically to support construction of the proposed bridge and expressway. Although Wade involved an action under the APA in which the...