U.S. v. South Florida Water Management Dist., s. 89-6029

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Citation922 F.2d 704
Docket NumberNos. 89-6029,89-6269,s. 89-6029
Parties, 21 Envtl. L. Rep. 20,774 UNITED STATES of America, Plaintiff-Appellee, Florida Keys Citizen Coalition, Florida Wildlife Federation, Environmental Defense Fund, Sierra Club, National Wildlife Federation, Wilderness Society, National Parks & Conservation Association and Defenders of Wildlife, Plaintiffs-Intervenors-Appellees, Florida Audubon Society, et al., Plaintiffs-Intervenors, v. SOUTH FLORIDA WATER MANAGEMENT DISTRICT, John R. Woodraska and Florida Department of Environmental Regulation, Defendants-Appellees, Dale Twachtman, Defendants, City of Belle Glade, Defendant-Intervenor, Western Palm Beach County Farm Bureau, Inc., Florida Fruit and Vegetable Association, Florida Sugar Cane League, Inc., Roth Farms, Inc., K.W.B. Farms and Beardsley Farms, Inc., Movants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. SOUTH FLORIDA WATER MANAGEMENT DISTRICT, et al., Defendants, Western Palm Beach County Farm Bureau, Inc., et al., Appellants.
Decision Date28 January 1991

William L. Earl, Peeples, Earl & Blank, P.A., Timothy H. Crutchfield, Peeples, Earl & Blank, P.A., Miami, Fla., for movants-appellants.

David J. White, Nat. Wildlife Federation, Atlanta, Ga., for Nat. Wildlife Federation.

Jerry Jackson, Skadden, Arps, Slate, Meagher & Flom, James A. Rogers, James R. Wrathall, Washington, D.C., for South Florida Water Management.

Robert G. Gough, State of Fla, Dept. of Environmental Regulation, Tallahassee, Fla., for State of Fla.

David J. White, Proenza, White, Huck & Roberts, Miami, Fla., David A. Crowley, State of Fla., Dept. of Environmental Regulation, Tallahassee, Fla., for Environmental Defense Fund, et al.

Dexter W. Lehtinen, Susan Hill Ponzoli, Asst. U.S. Atty., Miami, Fla., Ellen J. Durkee, Appellate Section, Dept. of Justice, David C. Shilton, Washington, D.C., for plaintiff-appellee.

Thomas W. Reese, St. Petersburg, Fla., for plaintiffs-intervenors.

Stanley James Brainerd, Florida Chamber of Commerce, Tallahassee, Fla., for amicus curiae, Florida Chamber of Commerce.

Robert B. Baker, Jr., Southeastern Legal Foundation, Inc., Atlanta, Ga., for amicus curiae, Southeastern Legal Foundation, Inc.

James T.B. Tripp, Environmental Defense Fund, New York City, for Environmental Defense Fund.

David Crowley, Robert G. Gough, Tallahassee, Fla., for Florida Dept. of Environmental Regulation.

Appeals from the United States District Court for the Southern District of Florida.

Before HATCHETT and ANDERSON, Circuit Judges, and ESCHBACH *, Senior Circuit Judge.

ESCHBACH, Senior Circuit Judge:

This is an appeal by three farm corporations and three agricultural organizations (together, the "Farm Interests") of the District Court's order denying them intervention under Fed.R.Civ.P. 24(a) and (b). The Farm Interests, or their members, rely on the defendant South Florida Water Management District (the "Water District") to provide irrigation and flood control services for their crops. The Farm Interests claim to be proper parties to this suit because the plaintiff United States seeks to restrict the Water District's operations. The United States claims that the Water District releases water polluted with farm runoff and that this pollution is strangling the mosaic of plants and animals that comprise the Loxahatchee National Wildlife Refuge and Everglades National Park. We hold that the Farm Interests have the right to intervene in this case. This right results solely by reason of the issues raised in Count I of the United States' Amended Complaint, 1 which asks the District Court to translate the state's narrative water quality standards into numeric criteria. The Farm Interests derive no right to intervene, however, by reason of the issues raised in Counts II, III, and IV, which assert that the Water District is violating state permitting requirements and has breached two contracts with the United States. On remand, the District Court may, if it finds appropriate, restrict the Farm Interests' participation in this case to the issues relating to Count I, or may bifurcate the proceedings between Count I and the other counts to promote judicial efficiency.

Jurisdiction

This Court has provisional jurisdiction under the "anomalous rule [that] has evolved in the federal appellate courts concerning the appealability ... of an order denying intervention." Weiser v. White, 505 F.2d 912, 916 (5th Cir.1975). 2 Under this rule, "[i]f the district court was correct in denying the motion to intervene, this court's jurisdiction evaporates and we must dismiss the appeal for want of jurisdiction. If the district court erred, we retain jurisdiction and must reverse." Federal Trade Comm'n v. American Legal Distributors, 890 F.2d 363, 364 (11th Cir.1989). The rule is "anomalous" because of the "seemingly inconsistent approach of reaching the merits to determine jurisdiction." Weiser, 505 F.2d at 917. Not surprisingly, this Court has noted "criticism of this rule, advocating a simple review of the denial of intervention as a final order." United States v. Jefferson County, 720 F.2d 1511, 1515 n. 12 (11th Cir.1983). Under either approach, we proceed to the merits.

Intervention by Right

Under Fed.R.Civ.P. 24(a), a nonparty may intervene by right if the applicant claims an interest in the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.

To support intervention, a nonparty's interest must be "direct, substantial, [and] legally protectable." Chiles v. Thornburgh, 865 F.2d 1197, 1213 (11th Cir.1989), quoting Athens Lumber Co. v. Federal Election Comm'n, 690 F.2d 1364, 1366 (11th Cir.1982), quoting Howse v. S/V "Canada Goose 1", 641 F.2d 317, 320-21 (5th Cir.1981). 3 A nonparty may have a sufficient interest for some issues in a case but not others, and the court may limit intervention accordingly. See Howard v. McLucas, 782 F.2d 956, 960-61 (11th Cir.1986) (restricting intervenors to participation in the single, remedial issue for which they had "standing"). 4 Also, the court may order a separate trial of claims or issues subject to intervention when "conducive to expedition and economy." See Fed.R.Civ.P. 42(b). In the present case, the main issue is whether and to what extent the Farm Interests have a legally protectable interest at stake. This, in turn, depends on the specific claims that the United States makes in its Amended Complaint.

Count I: Violation of Narrative State Law Standards

In Count I of its Amended Complaint, the United States asks the District Court to translate narrative state water quality standards into numeric limits. Specifically, the United States alleges that the Water District is violating the Florida Surface Water Improvement and Management Act of 1987 (the "SWIM Act"), which provides that the Water District's operations must not "adversely affect indigenous vegetation communities or wildlife." Fla.Stat. Sec. 373.4595(2)(a)(1); see also Fla.Admin.Code Sec. 17-302.560(19) (barring acts that create "an imbalance in natural populations of aquatic flora or fauna"). 5 This narrative standard is unspecific about exactly what concentrations of nitrogen and phosphorous--the particular nutrients at issue in this case--are permissible. But as counsel for the United States stated in oral argument, an order setting maximum concentrations of nutrients is the remedy that the United States seeks. 6 If it finds for the United States on Count I and grants the relief requested, the District Court will in effect translate the narrative water quality standards in the SWIM Act into numeric limits.

The problem is that the SWIM Act directs the Water District to conduct administrative proceedings towards this same end--translating the Act's narrative standards into specific numeric limits. The Water District has issued a draft "Surface Water Improvement and Management Plan for the Everglades," v. 1 and 2 (August 9, 1989) (the "draft SWIM Plan") which proposes numeric standards for implementing the SWIM Act's requirements, and the Water District is currently working on a final version. The Act delegates specific authority to the Water District to develop the SWIM Plan. See Fla.Stat. Sec. 373.451(5) (stating, "The Legislature finds that surface water problems can be corrected ... through plans and programs ... that are planned, designed, and implemented by the water management districts"). The broad narrative language of the SWIM Act confirms the grant of administrative discretion to define what the Act's standards mean. Cf. Chevron v. Natural Resources Defense Council, 467 U.S. 837, 843-44, 104 S.Ct. 2778, 2781-83, 81 L.Ed.2d 694 (1984) (discussing the implicit grant of administrative discretion in legislative use of broad statutory language). In short, the United States in Count I asks the District Court to partially pre-empt the administrative development of the SWIM Plan by specifying the numeric standards that apply under the SWIM Act.

The Farm Interests have a legally protectable right under the SWIM Act to participate and comment in the administrative development of the final SWIM Plan, and to pursue an administrative appeal. See Fla.Admin.Code Sec. 17-43.035(2) (requiring public hearing in the preparation of the SWIM Act); Fla.Stat. Sec. 373.114 (providing a right to administrative appeal which applies to the final SWIM Plan). Besides being legally protectable, the Farm Interests' right is directly and substantially related to Count I. The right is direct because it is a right to participate in the very matter being decided--what numeric standards should apply under the SWIM Act to the water that the Water District releases. And the right is substantial...

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