International Paper Co. v. Inhabitants of Town of Jay, Me.

• Decision Date: 03 August 1989
• Docket Number: No. 89-1295,89-1295
• Citation: 887 F.2d 338
• Parties: INTERNATIONAL PAPER COMPANY, Plaintiff, Appellee, v. The INHABITANTS OF THE TOWN OF JAY, MAINE, et al., Defendants, Appellees. Appeal of STATE OF MAINE. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 338

887 F.2d 338

15 Fed.R.Serv.3d 244

INTERNATIONAL PAPER COMPANY, Plaintiff, Appellee, v. The INHABITANTS OF THE TOWN OF JAY, MAINE, et al.,

Defendants, Appellees.

Appeal of STATE OF MAINE.

No. 89-1295.

United States Court of Appeals, First Circuit.

Heard Aug. 3, 1989.

Decided Oct. 10, 1989.

Peter J. Brann, Asst. Atty. Gen., with whom James E. Tierney, Atty. Gen., and Thomas D. Warren, Deputy Atty. Gen., Augusta, Me., were on brief, for appellant.

Theodore E. Dinsmoor with whom David G. Oedel, Gaston & Snow, Boston, Mass., Gerald F. Petruccelli, Mary P. Mitchell and Petruccelli, Cox & Martin, Portland, Me., were on brief for appellees the Inhabitants of the Town of Jay, Me., et al.

William J. Kayatta, Jr., with whom Catherine R. Connors and Pierce, Atwood, Scribner, Allen, Smith & Lancaster, Portland, Me., were on brief, for appellee Intern. Paper Co.

Before CAMPBELL, Chief Judge, TORRUELLA and SELYA, Circuit Judges.

LEVIN H. CAMPBELL, Chief Judge.

The state of Maine ("Maine") appeals from the district court's denial of its motion to intervene in a lawsuit brought by International Paper Company ("IP") against the town of Jay, Maine. The issue on appeal is whether Maine's interest in the suit, which challenges a local environmental ordinance as violative of state law, is sufficient to require the district court to allow Maine to intervene under one or more of the provisions of Federal Rule of Civil Procedure 24. Finding no legal error or abuse of discretion, we affirm the lower court's denial of Maine's motion to intervene.

In June of 1988, IP brought an action for declaratory and injunctive relief against the town of Jay and several of its officials in the United States District Court for the District of Maine. IP sought to invalidate a so-called Environmental Control and Improvement Ordinance which the town had enacted. Among various federal and state bases for attack, IP alleged that the ordinance was preempted by Maine's state environmental laws. Resolving IP's lawsuit may require the district court to interpret previously uninterpreted provisions of Maine's environmental laws, as well as provisions of Maine's recently modified Home Rule statute.

On July 15, 1988, Maine filed a motion with the district court to intervene as a party defendant, pursuant to 28 U.S.C. Sec. 2403(b) and Rule 24 of the Federal Rules of Civil Procedure. Maine sought to intervene only to address IP's claims that the ordinance violates state law and IP's claim that it is entitled to attorney's fees against the taxpayers of Jay other than itself. On August 1, 1988, IP filed an objection to Maine's motion to intervene. The town took no position in the district court on Maine's motion, although it has filed a brief in this court arguing that Maine is entitled to intervene under Federal Rules 24(a)(2) and 24(b).

On August 10, 1988, subsequent to commencement of IP's suit, Maine brought suit in state court against IP alleging that IP had violated several provisions of Maine's environmental law. That action is still pending in state court.

On February 16, 1989, the district court rendered a decision denying Maine's motion to intervene. International Paper Co. v. Inhabitants of the Town of Jay, 124 F.R.D. 506 (D.Me.1989). This appeal followed. Maine now argues that it was entitled to intervention on three separate grounds: 1) statutory intervention of right under Rule 24(a)(1) in conjunction with 28 U.S.C. Sec. 2403(b); 2) intervention as of right under Rule 24(a)(2); and 3) permissive intervention under Rule 24(b). We will address these three arguments in turn.

I. Intervention As of Right Under Rule 24(a)(1)

Rule 24(a)(1) provides: "Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene...." Fed.R.Civ.P. 24(a)(1). Maine claims that Section 2403(b) of the Judicial Code gives it an unconditional right to intervene in this action. Section 2403(b) provides:

In any action, suit, or proceeding in a court of the United States to which a State or any agency, officer, or employee thereof is not a party, wherein the constitutionality of any statute of that State affecting the public interest is drawn in question, the court shall certify such fact to the attorney general of the State, and shall permit the State to intervene for presentation of evidence, if evidence is otherwise admissible in the case, and for argument on the question of constitutionality....

28 U.S.C. Sec. 2403(b).

IP responds that its action does not question "the constitutionality of any statute of [the] State" since it challenges only an ordinance enacted by the town of Jay, rather than a statute passed by the Maine legislature. Alternatively, IP argues that even if the ordinance is deemed to be a "statute of [the] State," section 2403(b) would not provide a right of intervention in this case, because if ordinances of a town are state statutes, then towns must necessarily be state agents. And if this is so, then an agency of the state--the town of Jay--is already a party to this action, hence section 2403(b) does not apply.

Maine contends that ordinances adopted by the town of Jay are indeed state statutes for purposes of section 2403(b), but that, nonetheless, the town is not an agent of the state for purposes of the same statute.

The district court accepted Maine's contention that a municipal ordinance is a state statute for purposes of section 2403(b), but held that a municipal corporation, such as the town of Jay, is an agency of the state for purposes of section 2403(b). 124 F.R.D. at 508-09. Accordingly, the court held that section 2403(b) did not entitle Maine to intervene as of right.

We agree with the district court's ultimate conclusion that section 2403(b) does not provide Maine with a right of intervention, but we follow a different path to that result. Instead of holding that Jay is an agent of Maine for purposes of section 2403(b), we rule that in challenging a municipal ordinance IP is not questioning the constitutionality of a state statute.

The phrase "statute of [the] State" precisely describes enactments of the state legislature but only embraces local ordinances if one adds to its strict meaning--a local ordinance, after all, is not normally referred to as a "statute," nor is it normally viewed as operating at the level of state governance. Although neither the legislative history nor the case law relative to section 2403(b) provides much guidance on the intended scope of the provision, there are numerous cases interpreting the term "State statute" in former 28 U.S.C. Sec. 2281 (Repealed. Pub.L. No. 94-381, Secs. 1, 2, Aug. 12, 1976). Section 2281, which was repealed by the same act that enacted section 2403(b), provided that an application in federal court for an injunction against enforcement of a "statute of a State" on grounds of unconstitutionality should not be granted unless the application was heard and determined by a three judge court. The Supreme Court has consistently held that section 2281 applies only to "state statute[s] of general and statewide application," and that "[t]he term 'statute' in Sec. 2281 does not encompass local ordinances or resolutions." Moody v. Flowers, 387 U.S. 97, 101, 87 S.Ct. 1544, 1548, 18 L.Ed.2d 643 (1967) (citing cases). See also Strasser v. Doorley, 432 F.2d 567, 568 n. 1 (1st Cir.1970) (under section 2281, a "single-judge district court is not prevented ... from passing upon the constitutionality of a local ordinance, but only of a state statute").

A major reason given by the Court for excluding local ordinances from the scope of section 2281 was "that notice of the hearing must be given to the Attorney General--a precaution which would scarcely be deemed necessary in a suit of interest only to a single locality." Ex Parte Collins, 277 U.S. 565, 569, 48 S.Ct. 585, 586, 72 L.Ed. 990 (1928). Since section 2403(b) likewise requires the giving of special notice to the state Attorney General, the same reasoning can be said to apply here.

Maine argues that the proper reference point for determining the scope of "State statute" is not section 2281, but rather 28 U.S.C. Sec. 2403(a). Section 2403(a), which predates section 2403(b), provides:

In any action, suit or proceeding in a court of the United States to which the United States or any agency, officer or employee thereof is not a party, wherein the constitutionality of any Act of Congress affecting the public interest is drawn in question, the court shall certify such fact to the Attorney General, and shall permit the United States to intervene for presentation of evidence, if evidence is otherwise admissible in the case, and for argument on the question of constitutionality....

28 U.S.C. Sec. 2403(b). In support of its position, Maine relies on the Senate Report on section 2403(b), which states,

The present section 2403 gives the United States the right to intervene in any action challenging the constitutionality of a Federal statute when the United States is not a party. The new subsection (b) provides for a similar right of intervention on the part of a State.

S.Rep. No. 204, 94th Cong.2d Sess., at 9 (1976), reprinted in 1976 U.S.Cong. & Ad.News 1988, 1997.

We agree that section 2403(b) should be construed consistently with section 2403(a). However, the cases interpreting "Act of Congress" under section 2403(a) do not support Maine's broad reading of the State statute provision in section 2403(b). On the contrary, they suggest the same interpretation as do the cases interpreting section 2281. For example, in Keyes v. Madsen, 179 F.2d 40 (D.C.Cir.1949), cert. denied, 339 U.S. 928, 70 S.Ct. 628, 94 L.Ed. 1349 (1950), the court held that section 2403(a) does not apply to laws of the District of Columbia Code, which "apply only in the District of Columbia and concern only [matters of local interest]." 179 F.2d at 43. See also ...