U.S. v. Stringfellow
| Decision Date | 18 February 1986 |
| Docket Number | No. 84-5682,84-5682 |
| Citation | 783 F.2d 821 |
| Parties | , 54 USLW 2519, 4 Fed.R.Serv.3d 397, 16 Envtl. L. Rep. 20,458 UNITED STATES of America, et al., Plaintiffs-Appellees, v. J.B. STRINGFELLOW, Jr., et al., Defendants-Appellees, Concerned Neighbors In Action and Penny Newman, Intervenors-Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
F. Henry Habicht, II, Robert C. Bonner, James R. Arnold, Los Angeles, Cal., Michael R.W. Green, Dirk D. Snel, Anne S. Almy, U.S. Dept. of Justice, Washington, D.C., Lewis D'Amato, Brisbois & Bisgaard, Christopher P. Bisgaard, Los Angeles, Cal., Folger & Levin, Michael A. Kahn, Douglas Sullivan, San Francisco, Cal., Pachter, Gold & Schaffer, Clifford L. Schaffer, McCutchen, Black, Verleger & Shea, G. Richard Doty, Michael Hickok, Los Angeles, Cal., Lawrence A. Salibra, II, Cleveland, Ohio Latham & Watkins, David L. Mulliken, Steven P. McDonald, Robert P. Dahlquist, San Diego, Cal., Heller, Ehrman, White & McAuliffe, Richard Goff, Rene P. Tatro, McCutchen, Doyle, Brown & Enersen, Barry P. Goode, San Francisco, Cal., Chase, Rotchford, Drukker & Bogust, Vincent Fish, Los Angeles, Cal., for U.S.
Frederic D. Woocher, Joel R. Reynolds, Felicia A. Marcus, Carlyle W. Hall, Jr., John R. Phillips, Los Angeles, Cal., for intervenors-appellants.
Appeal from the United States District Court for the Central District of California.
Before GOODWIN and REINHARDT, Circuit Judges, and SOLOMON, District Judge *.
Concerned Neighbors in Action ("CNA") and its chairwoman, Penny Newman, appeal the district court's denial of their motion to intervene as of right in an action brought by the United States and the State of California against thirty-one parties who are allegedly responsible for release of hazardous wastes from the Stringfellow Acid Pits. We conclude that the district court erred in finding that appellants failed to meet the requirements of intervention under Fed.R.Civ.P. 24(a)(2). 1
CNA is a nonprofit organization consisting of over 400 residents of Glen Avon, California and its surrounding communities. The organization was founded in 1979 in response to releases of hazardous wastes from Stringfellow. CNA was formed to ensure adequate clean-up of the acid pits; to monitor the performance of government agencies involved in clean-up efforts; and to protect the health and well-being of its members who, according to appellants, have all been exposed to hazardous wastes deposited at Stringfellow. Penny Newman, in addition to being the chairwoman of CNA, is a resident of Glen Avon.
Stringfellow is a 20-acre hazardous waste disposal site constructed by the State of California and located one mile from Glen Avon. According to appellants' proposed complaint in intervention, dumping of hazardous waste into the acid pits began in 1956 and continued until closure of the site in 1972. During this period, approximately 34 million gallons of hazardous wastes were dumped into the site by more than two hundred parties, including agencies of the federal government.
As early as 1969, it became apparent that the hazardous waste was not being confined to the site and was escaping into the adjacent Pyrite Creek through which surface water flows down into the community of Glen Avon. In March, 1969, heavy rains caused the site to overflow, discharging contaminated water into Glen Avon. Heavy rainfall during the winter of 1977-78 caused similar overflowing. In 1978, the State of California released 800,000 gallons of contaminated water into Pyrite Creek, which in turn drained into the streets of Glen Avon. Additional flooding resulted from heavy rains in 1979 and 1982.
In April, 1983, the United States and the State of California brought suit against thirty-one defendants, including the former owners of the site and other private parties who generated or transported wastes which were dumped at the site ("the waste-generators"). The two governmental entities sought to enjoin the release of hazardous wastes from Stringfellow pursuant to the "imminent hazard" provisions of the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. Secs. 9601-9657 (1982); the Federal Water Pollution Control Act Amendments of 1972 and the Clean Water Act of 1977, 33 U.S.C. Secs. 1251-1376 (1982); the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. Secs. 6901-6986 (1982); and the Safe Drinking Water Act ("SDWA"), 42 U.S.C. Secs. 300f-300j-10 (1982). They also asserted claims for cost recovery pursuant to both state and federal law. 2
In July, 1983, CNA and Newman (hereinafter collectively referred to as "CNA") moved to intervene as of right, pursuant to Fed.R.Civ.P. 24(a)(1) and 24(a)(2). In the alternative, CNA moved to intervene permissively, pursuant to Fed.R.Civ.P. 24(b). In its complaint in intervention, CNA asserted claims against the plaintiff state and federal governments as well as the thirty-one waste generators named as defendants in the existing action. In addition to joining in the plaintiffs' claims for relief, CNA sought additional injunctive relief against both the plaintiffs and the defendants, including permanent abatement of the hazard by total removal of the hazardous substances from the site, and the conducting of health studies.
The district court denied CNA's motion to intervene as of right, concluding that neither Rule 24(a)(1) nor Rule 24(a)(2) provided a basis upon which to grant intervention. With respect to Rule 24(a)(1), which provides for intervention as of right "when a statute of the United States confers an unconditional right to intervene," the district court reasoned that although the "citizen suit" provisions of the SDWA, the RCRA and the CWA provide for citizen intervention as of right in certain types of actions, these statutory rights of intervention do not apply to suits such as this which have been brought by the United States pursuant to the "emergency powers" provision of the SDWA, the "imminent hazard" provision of the RCRA, and the "emergency relief" provision of the CWA. Accordingly, the court concluded that Rule 24(a)(1) did not authorize CNA to intervene.
The district court also denied CNA's motion under Rule 24(a)(2). Rule 24(a)(2) provides for intervention as of right
when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.
The district court concluded that CNA had failed to show that it would be practically disadvantaged by disposition of the litigation or that the existing parties would not adequately represent its interests.
Notwithstanding its denial of CNA's motion to intervene as of right, the district court granted CNA leave to intervene permissively, reasoning that since CNA's proposed complaint in intervention and the complaint filed by the United States and California raised common questions of fact and law, permissive intervention was appropriate. However, the court imposed conditions upon its grant of permissive intervention. CNA claims that those conditions severely limit its ability to influence the results of the litigation. Specifically, the district court's order prohibited appellant from (1) asserting any claims not already asserted by the original parties; (2) intervening in the original parties' cost recovery claims; and (3) initiating any motion or discovery, unless appellant had conferred with the original parties and had secured the concurrence of at least one of them in the proposed motion or discovery.
In this appeal, CNA raises two issues, only one of which we need address. First, it contends that the district court's determination that it failed to make the requisite showing under Rule 24(a)(2) was erroneous. Second, and in the alternative, it contends that the district court erred in finding that the statutes pursuant to which the original plaintiffs brought this action confer upon it no right of intervention. Because we reverse the district court's denial of intervention under Rule 24(a)(2), we do not rule on appellant's statutory right of intervention claim.
The waste-generators challenge our jurisdiction over this appeal. They contend that an order denying intervention as of right but granting permissive intervention is not a "final decision" within the meaning of 28 U.S.C. Sec. 1291 (1982), and hence is not appealable. They also contend that because appellant availed itself of the benefits of permissive intervention by filing briefs and pleadings, it is, in effect, estopped from appealing the district court's denial of its motion to intervene as of right.
We reject the waste-generators' contentions. First, we have previously held that an order denying intervention as of right is a final appealable order, notwithstanding a simultaneous grant of permissive intervention, California v. Block, 690 F.2d 753, 776 (9th Cir.1982), and are bound by that holding. 3 Second, CNA's participation in the litigation as a permissive intervenor does not estop it from timely appealing that portion of the order denying intervention as of right. 4 A party is not required to reject the benefits of a judgment it deems inadequate in order to preserve its right to appeal, so long as the party does not consent to the judgment. United States v. Hougham, 364 U.S. 310, 312, 81 S.Ct. 13, 16, 5 L.Ed.2d 8 (1960); United States for Use & Benefit of H & S Industries, Inc. v. F.D. Rich Co., 525 F.2d 760, 764-65 (7th Cir.1975); Hawaiian Paradise Park Corp. v. Friendly Broadcasting Co., 414 F.2d 750, 752 (9th Cir.1969); 9 J. Moore & B. Ward, Moore's Federal Practice p 203.06,...
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