COL. GORGE AUDUBON SOC. v. KLICKITAT CTY.

• Citation: 989 P.2d 1260,98 Wash.App. 618
• Decision Date: 23 December 1999
• Docket Number: No. 15367-3-III.,15367-3-III.
• Court: Washington Court of Appeals
• Parties: COLUMBIA GORGE AUDUBON SOCIETY, a Washington non-profit corporation, Plaintiff, v. KLICKITAT COUNTY, a Washington County, Defendant, Kenetech Wind Power, Inc., a corporation organized and existing under the laws of the State of California, Respondent.

989 P.2d 1260

98 Wash.App. 618

COLUMBIA GORGE AUDUBON SOCIETY, a Washington non-profit corporation, Plaintiff, v. KLICKITAT COUNTY, a Washington County, Defendant, Kenetech Wind Power, Inc., a corporation organized and existing under the laws of the State of California, Respondent.

No. 15367-3-III.

Court of Appeals of Washington, Division 3, Panel Six.

December 23, 1999.

Thomas J. Van Norman, Cheyenne River Sioux Tribe, Eagle Butte, Michael Bauer, Blacksburg, Patrick J. Oshie, Patrick D. Spurgin, Yakima, for Appellant.

Adam Umanoff, Los Angeles, CA, Brent Carson, Kitteridge Oldham, Seattle, for Respondent.

SWEENEY, J.

This land use case raises a number of procedural questions—questions of first impression.

The Confederated Tribes and Bands of the Yakama Indian Nation voluntarily dismissed its own petition for superior court review of an adverse decision of the Klickitat County Board of Adjustment. It then tried to intervene in an appeal that had been timely filed by the Columbia Gorge Audubon Society. The superior court denied the Yakama Nation's motion to intervene. It found that the Yakama Nation had failed to perfect its own timely appeal within the 10-day limitation period for appealing the adverse administrative decision. The court therefore concluded that the Yakama Nation was time-barred as a matter of law from intervening. The court also concluded that the Yakama Nation's interests would be amply protected by the Audubon Society.

The first question presented we review de novo—whether the running of a statute of limitation bars the Yakama Nation's attempt to intervene as a matter of right, pursuant to CR 24(a). We conclude it does not. The second question is whether the trial court abused its discretion by denying the Yakama Nation's motion to intervene. We conclude that it did. We therefore reverse the trial court's decision denying the Yakama Nation's motion to intervene and remand with instructions to permit intervention as of right.

FACTS

The Confederated Tribes and Bands of the Yakama Indian Nation is a federally recognized Indian nation pursuant to treaty with the United States.¹

On July 13, 1995, the Klickitat County Board of Adjustment approved a conditional use permit for Kenetech Windpower, Inc., to develop a wind-powered electrical power generation facility in the Columbia Hills area. The limitation period for challenging the Board's ruling is 10 days. Supplemental Clerk's Papers at 52. Enron Wind Development Corporation is Kenetech's successor in interest. It was substituted as a party on July 8, 1998, and is the respondent in this appeal.

The Yakama Nation filed a timely petition for review to superior court on July 24, 1995, the last day of the 10-day limitation period. The County moved to dismiss this appeal because the motion failed to join indispensable parties. The Yakama Nation apparently agreed and voluntarily dismissed their appeal on October 17, 1995.

The Columbia Gorge Audubon Society also petitioned for review on July 24, 1995, naming as principal defendants the County and the power company. It filed an amended petition for review and writ of certiorari on September 5, 1995. The Audubon Society challenged the proposed development because it (1) threatened bird habitat, (2) violated zoning laws, (3) diminished use and enjoyment of the land, (4) compromised the scenic beauty of the gorge, and, finally, (5) affected members' enjoyment by threatening "cultural resources in the area, including native American cultures...."

The Audubon Society had mailed a copy of the amended petition to counsel for the Yakama Nation on September 1. On September 25, the Yakama Nation filed a motion to intervene as party plaintiff in the Audubon Society's appeal. The superior court had not yet ruled on any motions or the merits of the appeal. The Audubon Society did not object to the motion to intervene.

The County opposed the motion. And it persuaded the court that, because the Yakama Nation had failed to perfect its own timely appeal, the motion to intervene was untimely and intervention was prohibited as a matter of law. The court concluded that the motion was untimely and further that the Yakama Nation could adequately protect its interests by informally associating itself with the Audubon Society.

We granted the Yakama Nation's petition for discretionary review.

DISCUSSION

CR 24(a)

Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: ... (2) 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.

CR 24(a).

We generally review a ruling on the timeliness of a CR 24 motion for abuse of discretion. Kreidler v. Eikenberry, 111 Wash.2d 828, 832, 766 P.2d 438 (1989). But when, as here, the trial judge does not exercise discretion, but instead rules that intervention is barred as a matter of law, we review de novo. American Pipe & Constr. Co. v. Utah, 414 U.S. 538, 560, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974).²

As a preliminary matter, we note that the Administrative Procedure Act (APA), RCW 34.05, provides for intervention by interested parties in proceedings seeking judicial review of administrative actions. RCW 34.05.010(13) (former RCW 34.05.010(12)). Intervention is governed by court rule "to the extent not inconsistent" with the APA. RCW 34.05.510(2). The APA does not mention statutes of limitation. Rather it permits intervention at any time, provided it is in the interest of justice and does not impede the conduct of the proceedings. RCW 34.05.443(1).

In Washington, as in the federal courts and other jurisdictions, the requirements of CR 24(a) are liberally construed to favor intervention. Fritz v. Gorton, 8 Wash.App. 658, 660, 509 P.2d 83 (1973). On the question of timeliness in particular, CR 24(a) allows intervention as of right unless it would work a hardship on one of the original parties. Loveless v. Yantis, 82 Wash.2d 754, 759, 513 P.2d 1023 (1973).

Here in Washington, a motion to intervene is timely if it is filed before the commencement of the trial. American Discount Corp. v. Saratoga West, Inc., 81 Wash.2d 34, 43, 499 P.2d 869 (1972). This has always been the rule here. See Colburn v. Spokane City Club, 20 Wash.2d 412, 415-16, 147 P.2d 504 (1944) (citing Rem.Rev.Stat. § 202); Hight v. Batley, 32 Wash. 165, 166, 72 P. 1034 (1903) (intervention not timely after appeal is filed) (citing Ballinger's Codes § 4846).

Even after judgment has been entered, intervention remains within the discretion of the court if the particular circumstances warrant it. Kreidler, 111 Wash.2d at 832-33, 766 P.2d 438. This is also consistent with federal law. Mille Lacs Band of Chippewa Indians v. Minnesota, 989 F.2d 994, 998 (8th Cir.1993) (motion to intervene was timely even though filed after judgment entered). American Discount sets out a straightforward analysis of timeliness. 81 Wash.2d at 43,499 P.2d 869. There, the action was filed September 1, 1970; the motion to intervene was filed September 24, 1970; a final amended complaint in intervention was filed November 24, 1970; a hearing was held and judgment entered January 22, 1971. The claim of right to intervene was thus raised prior to trial and judgment and was thus timely. If we substitute the Yakama Nation for the intervenor in American Discount, the facts and conclusion here are:

The action was filed by the Audubon Society July 24, 1995—within the statute of limitation.

Audubon Society amended its petition September 5, 1995.

The Yakama Nation's motion to intervene was filed September 25, 1995. This was before the hearing of the petition and before any substantive ruling.

The claim of right to intervene was thus raised prior to trial and judgment, and was thus timely. This makes sense. To interpret CR 24 as permitting intervention only by those with a perfected or perfectible independent cause of action is to render the rule meaningless.

Enron's argument relies heavily on federal class action cases in which a would-be plaintiff moved to intervene after denial of class certification under CR 23. The leading such case is American Pipe.³ There, with 11 days remaining on the statute of limitation, Utah sued American Pipe for damages under the Sherman Act and moved for class certification. American Pipe, 414 U.S. at 541, 94 S.Ct. 756. The trial court denied class certification under Fed.R.Civ.P. 23. Id. at 542-43, 94 S.Ct. 756. Eight days later, would-be class members moved to intervene in Utah's suit under Fed.R.Civ.P. 24(a) or (b). The court denied the motion, concluding that the statute of limitation on the private causes of action had run. Id. at 543-44, 94 S.Ct. 756.

The Supreme Court reversed and held that members of the class stood as parties to Utah's suit, and that timely filing of that action "satisfied the purpose of the limitation provision as to all those who might subsequently participate in the suit as well as for the named plaintiffs." American Pipe, 414 U.S. at 551, 94 S.Ct. 756. The statute of limitation was tolled, and therefore would-be members of the class could make timely motions to intervene even after the statute of limitation would otherwise have run on the individual claims. Id. at 552-53, 94 S.Ct. 756. The Court explained that the purposes of statutes of limitation were satisfied because the defendant was on notice and had the essential information to defend. Id. at 554-55, 94 S.Ct. 756.

American Pipe insures that potential parties to a class action are not forced to file multiple superfluous individual actions to protect their individual right to sue in the event the class is rejected. Any statute of limitation for filing each individual claim is tolled when the class action is...