KARST Envtl. Educ. v. Fed. HIGHWAY Admin.
| Decision Date | 14 April 2011 |
| Docket Number | CASE NO. 1:10-CV-00154-R |
| Parties | KARST ENVIRONMENTAL EDUCATION AND PROTECTION, INC. PLAINTIFF v. FEDERAL HIGHWAY ADMINISTRATION, et al. DEFENDANTS |
| Court | U.S. District Court — Western District of Kentucky |
OPINION TEXT STARTS HERE
This matter is before the Court upon Movants' motion to intervene as defendants (DN 7). Plaintiff and Defendants have both responded in opposition (DN 14; DN 17). Movants have replied (DN 18; DN 19). This motion is now ripe of adjudication. For the reasons that follow, Movants' motion is DENIED.
Movants have also filed a motion for leave to file a brief as amicus curiae (DN 24). For the reasons that follow, this motion is GRANTED. Movants may participate in the instant action as amicus curiae and are permitted to file memoranda to support or oppose any dispositive motions.
This action has its origins in the commercial and industrial growth that has characterized Bowling Green, Kentucky ("City"), for the past several decades. A recent study by the federal government found that the City and the county in which it sits, Warren County ("County"), serve as the main economic center for southwestern Kentucky, and that both are increasing rapidly in population. DN 17-2 at 11. This growth has served to create a prosperous, economically-vibrant region of the state; it has also strained the existing infrastructure of surrounding area, in particular the locality's roads and highways.
To the northeast of the City are located, U.S. interstate 1-65 ("1-65") and U.S. Highway 31-West ("U.S. 31"). The two highways project out from the City like the spokes of a wheel. I-65 heads due east while U.S. 31 takes a more northeasterly route. The corridor created by the divergence of the two thoroughfares has grown substantially in the last thirty years ("the Corridor"). It is heavily populated, with several industrial parks, an assortment of commercial businesses, a number of apartment complexes, mobile home parks, and single family residences. Growth in and around the Corridor has caused increased traffic on the surrounding roads. This in turn has led to a spike in motor-vehicle accidents that is "higher than those for other similar Kentucky highway segments." DN 17-2 at 1-15.
One of these industrial parks in the Corridor is the Kentucky Transpark ("Transpark"), an industrial economic zone developed by the Inter-Modal Transportation Authority, Inc. ("ITA"). ITA is a nonprofit agency formed by the City and County to purchase land for and to develop the Transpark. It purchased the 800 acres the Transpark now occupies through a $25 million industrial revenue bond issuance. In 2007, the City and County assumed equal responsibility for the bonds if ITA fails to comply with its interest-payment schedule.
To alleviate the increased congestion and to create a safer network of roads, the Kentucky Transportation Cabinet ("KYTC") and the Federal Highway Administration ("FHWA") began planning a connector road that would extend from north to south, linking the two spokes of the Corridor, I-65 and U.S. 31 ("Project"). In 2003, FHWA published notices of the plan and stated its intent to analyze the Project under the National Environmental Policy Act of 1969 ("NEPA").1 A number of meetings were held with state and government agencies that included the City, the County, the United States Park Service, the Kentucky Departments of Agriculture and Fish and Wildlife Resources, and others. The groups discussed the environmental impact of the Project and its alternatives at length, after which the FHWA and KYTC released the Final Environmental Impact Statement ("FEIS"). The FEIS described eight different options for the Project, and then detailed the labors of FHWA and KYTC in deciding on which option to pursue. Eventually, the FHWA decided upon Alternative 6-Orange, as laid out in the FEIS, for the Project. Alternative 6-Orange calls for a four-lane divided highway between I-65 and U.S. 31, with anticipated costs of more than $70 million. As designed, the Project will intersect the Transpark twice and the primary interchange with U.S. 31 will sit only 9/10s of a mile away from the Transpark's entrance. Id. at 19, 66-69. Although the City, County, and ITA did participate in these meetings before the FEIS's publication, they were not involved in the ultimate decision arrived upon by FHWA and KYTC.
Karst Environmental Education and Protection, Inc. ("KEEP") is a nonprofit Kentucky Corporation that describes its mission "to educate and advocate towards the goal of protecting, conserving, and defending karst, karst systems, and karst landscapes." DN 11 at 6. Karst topography is "usually characterized by barren, rocky ground, caves, sinkholes, underground rivers, and . . . results from the excavating effects of underground water on massive soluble limestone." Encyclopedia Britannica Online, www.britannica.com (last visited February 14, 2011) (defining "karst"). According to KEEP's complaint, the area around the City is one of the more elaborate examples of karst topography in the country, the keystone being the cave system of Mammoth Cave National Park, which stretches some 400 miles in all directions.
On October 5, 2010, KEEP brought this action against the FHWA, the administrator of the FHWA, and Kentucky's division administrator of the FHWA in his official capacity (collectively "Defendants"). KEEP's Complaint asks for a declaratory judgment finding that the FHWA violated NEPA when it failed to make a number of factual and scientific findings before deciding to proceed with the Project.2 KEEP also seeks injunctive relief to stop the Project from progressing.
On December 12, 2010, the City, the County, and ITA (collectively "Movants") filed
their joint Motion to Intervene in the action as defendants under Federal Rule of Civil Procedure 24. In it, the Movants declare that they have number of important financial and public interests implicated by this litigation, that are not being adequately represented, and therefore they are entitled to intervention of right under Rule 24(a)(2). Alternatively, Movants state that the Court should grant permissive intervention as described in Rule 24(b), as only they will be "able to provide a uniquely local perspective" to the litigation. DN 7-1 at 12. On either count however, the Movants are in firm support of the Project and would work to see it constructed in its current form should the Court to allow them to intervene. KEEP and Defendants both urge the Court to deny the Movants' request in large part because Movants do not have a legal interest recognized in the context of Rule 24 at stake in this litigation. KEEP and Defendants suggest that the more appropriate role for Movants in this action is that of amicus curiae.
Federal Rule of Civil Procedure 24 allows for two types of intervention: intervention of right and permissive intervention. Subsection (a)(2) of the rule provides that a non-party may intervene as "of right" when, "[o]n timely motion," the movant "claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest." Fed. R. Civ. P. 24(a)(2). In other words, Rule 24 allows an absentee party to petition for intervention when it "stands to have its interests harmed." Glancy v. Taubman Centers, Inc., 373 F.3d 656, 670 n. 13 (6th Cir. 2004). The Sixth Circuit has held that Rule 24 "should be 'broadly construed in favor of potential intervenors.'" Coal. to Defend Affirmative Action v. Granholm, 501 F.3d 775, 779 (6th Cir. 2007) (quoting Purnell v. City of Akron, 925 F.2d 941, 950 (6th Cir. 1991)).
On the other hand, Rule 24(b) describes that a party is permitted to intervene when, on a timely motion, the party "is given a conditional right to intervene by a federal statute" or "has a claim or defense that shares with the main action a common question of law or fact." Fed. R. Civ. P. 24(b). In choosing to grant or deny permissive intervention, not only is the trial court bestowed with broad discretion, Afro Am. Patrolmen's League v. Duck, 503 F.2d 294, 298 (6th Cir. 1974), but it must also seek to guard against any "undue[] delay or prejudice [to] the adjudication of the rights of the original parties." Fed. R. Civ. P. 24(b)(3).
Finally, in addressing the factual allegations of the parties, this court will accept "as true the non-conclusory allegations made in support of an intervention motion." Sw. Ctr. for Biological Diversity v. Berg, 268 F.3d 810, 819 (9th Cir. 2001); see Reich v. ABC/York-Estes Corp., 64 F.3d 316, 321 (7th Cir. 1995).
For the Movants to successfully intervene in this action under Rule 24(a)(2),3 they:
must establish four factors before being entitled to intervene: (1) the motion to intervene is timely; (2) the proposed intervenor has a substantial legal interest in the subject matter of the case; (3) the proposed intervenor's ability to protect their interest may be impaired in the absence of intervention; and (4) the parties already before the court cannot adequately protect the proposed intervenor's interest.
Granholm, 501 F.3d at 779 (citing Grutter v. Bollinger, 188 F.3d 394, 397-98 (6th Cir. 1999)). Each of the factors must be shown, as the absence of even one will compel the Court to deny Movants' request. United States v. Michigan, 424 F.3d 438, 443 (6th Cir. 2005) (quoting Grubbs v. Norris, 870 F.2d 343, 345 (6th Cir. 1989)).
In addressing the four requisite factors for intervention under Rule 24(a)(2), the parties focus the bulk of their attention on whether the Movants have a sufficient legal interest in the subject matter of the litigation. ITA offers three separate interests implicated...
To continue reading
Request your trial