U.S. v. Metropolitan Dist. Com'n, s. 88-1493
| Decision Date | 04 November 1988 |
| Docket Number | 88-1494 and 88-1727,Nos. 88-1493,s. 88-1493 |
| Citation | 865 F.2d 2 |
| Parties | , 13 Fed.R.Serv.3d 287, 19 Envtl. L. Rep. 20,639 UNITED STATES of America, et al., Plaintiffs, Appellees, v. METROPOLITAN DISTRICT COMMISSION, et al., Defendants, Appellees. Appeal of TOWN OF HULL, Plaintiff, Intervenor, Appellant. UNITED STATES of America, et al., Plaintiffs, Appellees, v. METROPOLITAN DISTRICT COMMISSION, et al., Defendants, Appellees. Appeal of NAHANT S.W.I.M., INCORPORATED, Plaintiff, Intervenor, Appellant. UNITED STATES of America, et al., Plaintiffs, Appellees, v. METROPOLITAN DISTRICT COMMISSION, et al., Defendants, Appellees. Appeal of TOWNS OF COHASSET AND SCITUATE, Intervenors, Appellants. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
James L. Quarles, III, Boston, Mass., with whom Paul G. Wallach, Washington, D.C., Michael Kendall, Hale and Dorr, Boston, Mass., James B. Lampke, Hingham, Mass., Richard A. Henderson, Cohasset, Mass., Kenneth Tatarian, Michael Meagher, Boston, Mass., Gregory L. Benik and Hinckley, Allen, Snyder & Comen, Providence, R.I., were on brief for appellants.
Andrew S. Hogeland, Asst. U.S. Atty., with whom Frank L. McNamara, Jr., U.S. Atty., Boston, Mass., was on brief for the U.S.
Douglas H. Wilkins, Asst. Atty. Gen., for Metropolitan Dist. Com'n and John M. Stevens, for Massachusetts Water Resources Authority, with whom James M. Shannon, Atty. Gen., and Foley, Hoag & Eliot, Boston, Mass., were on brief for the Com. of Massachusetts.
Before BOWNES and SELYA, Circuit Judges, and CAFFREY, * Senior District Judge.
The towns of Cohasset, Scituate, and Hull, and the public interest group, Nahant S.W.I.M., appeal an order by the district court which denied their motions to intervene in this case which involves the cleanup of Boston Harbor. We affirm.
The district court consolidated two cases designed to remedy the pollution of Boston Harbor resulting from sewage and other wastewater discharge, one brought in June 1983 by the Conservation Law Foundation of New England against the Metropolitan District Commission ("MDC") and the Environmental Protection Agency ("EPA"), 1 and the other brought on January 31, 1985 by the United States on behalf of the EPA against the MDC, the Commonwealth of Massachusetts, the Massachusetts Water Resources Authority ("MWRA") and the Boston Water and Sewer Commission. The cities of Quincy and Winthrop moved to intervene on July 1, 1985 and their motions were granted.
On September 5, 1985, the district court found the MDC and the MWRA to be in violation of the Federal Water Pollution Control Act ("FWPCA") and granted partial summary judgment. United States v. Metropolitan District Commission, 23 Envir. Rep. Cases (BNA) 1350 (D.Mass.1985). After extensive negotiations with the parties, the district court issued on May 8, 1986, a long-term scheduling order in which the MWRA was to build a primary treatment facility by 1995, a secondary treatment facility by 1999, and construct an outfall pipe to remove this partially treated sewage and deposit it elsewhere. The district court did not determine where the outfall pipe would discharge the effluent; this was left to the administrative agency, the MWRA.
On June 24, 1986 the MWRA filed an environmental notification form ("ENF"), published in the Environmental Monitor, giving formal notice that the process for selecting a terminus site for the pipe had begun and listing Massachusetts Bay as a possible site. 2 In the spring of 1987, the news media reported specific sites in Massachusetts Bay that the MWRA was considering for the location of the outfall pipe terminus.
In October, 1987, Nahant S.W.I.M. and the towns of Hull, Cohasset, Scituate, Marshfield and Hingham sought to intervene in the case pursuant to both 33 U.S.C. Sec. 1365(b)(1)(B) of the FWPCA and Fed.R.Civ.P. 24, in order to protect their rights to unpolluted bay water which might be threatened by siting the terminus of the sewage outfall pipe in Massachusetts Bay.
The district court, in a Memorandum and Order dated February 8, 1988, held that the motions were untimely and denied them. Cohasset, Scituate, Hull, and Nahant S.W.I.M. appeal this ruling.
The district court issued its order concerning intervention on February 8, 1988. Hull and Nahant S.W.I.M. filed notices of appeal within the required 60 days of the order; Hull filed on March 8, 1988 and Nahant S.W.I.M. filed on March 9, 1988. Cohasset and Scituate, however, did not file their joint notice of appeal until June 27, 1988.
The Federal Rules of Appellate Procedure are clear that late appeals such as those made by Cohasset and Scituate (4 1/2 months after the court order) are not allowed. Fed.R.App.P. 3, 4. 3 Moreover, Fed.R.App.P. 26(b) states that "the court may not enlarge the time for filing a notice of appeal." The Supreme Court has recently reiterated this principle:
Permitting courts to exercise jurisdiction over unnamed parties after the time for filing a notice of appeal has passed is equivalent to permitting courts to extend the time for filing a notice of appeal. Because the rules do not grant courts the latter power, we hold that the rules likewise withhold the former.
Torres v. Oakland Scavenger Co., --- U.S. ----, ----, 108 S.Ct. 2405, 2408, 101 L.Ed.2d 285 (1988) (emphasis added).
We conclude that there is no appellate jurisdiction over Cohasset's and Scituate's appeal.
The FWPCA provides that if the State has commenced a lawsuit to require compliance with an effluent standard or limitation or an order with respect to such a standard or limitation, "any citizen may intervene as a matter of right" in any such action. 33 U.S.C. Sec. 1365(b)(1)(B). The district court held that the intervenors were too late to intervene on the liability issue, and too early to intervene on the enforcement issue. It held that effluent limitations were no longer at issue because the liability phase of the case was completed, and only issues of enforcement remained. It also held that "[u]ntil the outfall is finally sited and a standard imposed which is threatened by the development of a sewage (sic) system which includes the outfall, the only prerequisite to maintaining an intervention motion has not been met." United States v. Metropolitan District Commission, 679 F.Supp. 1154, 1159 (D.Mass.1988).
Fed.R.Civ.P. 24 dictates that any motion to intervene must be timely. 4 See NAACP v. New York, 413 U.S. 345, 365, 93 S.Ct. 2591, 2603, 37 L.Ed.2d 648 (1973). We have established four factors for evaluating the timeliness issue: (i) the length of time the prospective intervenors knew or reasonably should have known of their interest before they petitioned to intervene; (ii) the prejudice to existing parties due to the intervenor's failure to petition for intervention promptly; (iii) the prejudice the prospective intervenors would suffer if not allowed to intervene; and (iv) the existence of unusual circumstances militating for or against intervention. Culbreath v. Dukakis, 630 F.2d 15, 20-24 (1st Cir.1980). See also Garrity v. Gallen, 697 F.2d 452, 455 (1st Cir.1983); United Nuclear Corp. v. Cannon, 696 F.2d 141, 143 (1st Cir.1982).
The district court carefully addressed each of these factors and concluded: (i) that "it had been obvious since the inception of the MWRA in 1985 that one solution to the disposal problem was the construction of an outfall somewhere in the Massachusetts Bay," United States v. Metropolitan District Commission, 679 F.Supp. at 1160; (ii) that "any attempt to relitigate decided issues would clearly prejudice the existing parties" and "[a]llowing intervention, even if limited to the specific issue of the...
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