Utahns for Better Transp. v. U.S. Dept. of Transp., 01-4117.
| Decision Date | 05 July 2002 |
| Docket Number | No. 01-4117.,01-4117. |
| Citation | 295 F.3d 1111 |
| Parties | UTAHNS FOR BETTER TRANSPORTATION; Ross C. "Rocky" Anderson, in his official capacity as Mayor of Salt Lake City, Utah, Plaintiffs, and Sierra Club, Plaintiff-Appellee, v. UNITED STATES DEPARTMENT OF TRANSPORTATION; Norman Mineta, Secretary, United States Department of Transportation; Federal Highway Administration; Mary E. Peters, Administrator, Federal Highway Administration; David Gibbs, Division Administrator of the Utah Division of the Federal Highway Administration; U.S. Army Corps of Engineers; Michael J. Conrad, Colonel, District Engineer of the Sacramento District; Brooks Carter, Chief of the Intermountain Regulatory Section; Federal Transit Administration; Jennifer L. Dorn, Administrator of the Federal Transit Administration; Lee Waddleton, Regional Administrator of the Federal Transit Administration and his successor, Defendants. State of Utah, Utah Department of Transportation, Intervenors. Advocates for Safe and Efficient Transportation, Movant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Page 1111
Sierra Club, Plaintiff-Appellee,
v.
UNITED STATES DEPARTMENT OF TRANSPORTATION; Norman Mineta, Secretary, United States Department of Transportation; Federal Highway Administration; Mary E. Peters, Administrator, Federal Highway Administration; David Gibbs, Division Administrator of the Utah Division of the Federal Highway Administration; U.S. Army Corps of Engineers; Michael J. Conrad, Colonel, District Engineer of the Sacramento District; Brooks Carter, Chief of the Intermountain Regulatory Section; Federal Transit Administration; Jennifer L. Dorn, Administrator of the Federal Transit Administration; Lee Waddleton, Regional Administrator of the Federal Transit Administration and his successor, Defendants.
State of Utah, Utah Department of Transportation, Intervenors.
Advocates for Safe and Efficient Transportation, Movant-Appellant.
Page 1112
Patrick Gallagher, Alex Levinson, Aaron Isherwood, San Francisco, CA, and Joro Walker, Salt Lake City, UT, for Appellee Sierra Club.
David M. Friedland, Gus B. Bauman, David M. Williamson, Washington, DC, and Kenneth W. Yeates and Mark A. Wagner, Salt Lake City, UT, for Appellant Advocates for Safe and Efficient Transportation.
Before SEYMOUR, McWILLIAMS, and JOHN R. GIBSON,* Circuit Judges.
JOHN R. GIBSON, Circuit Judge.
The trade association Advocates for Safe and Efficient Transportation, which refers to itself as ASET,1 appeals from an order of the district court denying its motion to intervene in this action brought by the Sierra Club against the United States Department of Transportation and other agencies and officials of the United States. See Utahns for Better Transp. v. United States Dep't of Transp., Civil No. 1:01CV0014J (D.Utah May 16, 2001) (order denying intervention).2 We reverse and remand with directions to grant ASET's motion to intervene.
Under § 176 of the Clean Air Act, certain regional transportation plans must receive the approval of the federal government to ensure conformity with that region's air quality plan. 42 U.S.C. § 7506(c) (1994 & Supp. V 1998); see 40 C.F.R. § 93.118(a) (2001) ("The transportation plan ... must be consistent with the motor vehicle emissions budget(s)...."). The Sierra Club's complaint alleges, among other things, that the federal defendants did not follow proper procedure in approving various transportation plans and projects in the Wasatch Front region in Utah. The Sierra Club specifically asks for: "an order vacating the Defendants' approvals of the Wasatch Front [transportation plans], requiring Defendants to withdraw all such approvals
Page 1113
and prohibiting Defendants from funding, approving or assisting any capacity-expanding highway project"; an order declaring the transportation plans invalid; "[a]n injunction vacating Defendants' approvals of the [transportation plans]"; and "[a]n injunction prohibiting the Defendants from approving, funding or assisting in any way any capacity-expanding highway project in the Wasatch Front region, including but not limited to the Legacy Parkway project, until such time as Defendants comply with the law."
ASET sought to intervene, and in its motion to do so alleged as follows:
(1) ASET has timely moved to intervene before any answer or responsive paper has been filed;
(2) ASET's members have significant and substantial interests in the Salt Lake-Ogden region that are explicitly identified in the statutes implicated and claims raised in this action. Among other interests, (a) ASET's members have existing contracts and pending bids for approved transportation projects specifically attacked in this lawsuit; (b) ASET's members also have economic opportunities, including future contract awards and bid opportunities, at stake; (c) ASET's members include transportation officials that will be impacted by any decision in this matter; (d) ASET's members use and enjoy the present and planned transportation infrastructure at issue in this litigation for their business, personal, commuting, and recreational needs; (e) ASET and its members have participated for years in the development of the transportation plans and programs targeted in the Complaint; and finally, (f) ASET represents Salt Lake area citizens and businesses who will be marginalized, absent intervention, by Plaintiff's attack on Utah transportation planning in this and another lawsuit;
(3) ASET members' interests will be substantially impaired by this lawsuit and the relief requested. This lawsuit threatens to halt all projects, project funding, project contracts and bids, and implementation of approved transportation infrastructure improvements that are crucial to ASET members' interests. ASET will be unable to protect these interests absent intervention because this lawsuit circumvents the public participation process mandated by federal and state transportation planning statutes and destabilizes and delays the planning process; and
(4) The Federal Defendants cannot adequately represent ASET's interests because of potentially adverse positions regarding existing and future contracts and the fact that Federal Defendants do not represent ASET's specific economic and user interests.
The district court conducted a hearing on May 1, 2001.3 The hearing commenced with counsel for ASET announcing that a compromise had been reached between ASET and the Sierra Club, "which would in general entail ASET participating in only certain counts and only on the second phase of briefing," but that the parties needed some time to negotiate details. The district court responded by saying: "No. I think we need to decide now whether you're here or whether you're not and if you're here in what form you're here. I have some genuine question myself as to whether you're here at all." ASET's counsel
Page 1114
asserted that ASET "should be allowed to intervene because our members have particular interests that are at stake in this litigation and as a trade association we're entitled to represent their interests. They have asked us ... to represent them." ASET was really "in the same situation as Sierra Club," ASET's counsel continued, "representing its individual members here." The following excerpts from the hearing transcript are representative of the remainder of the discussion between the district court judge and counsel for ASET:4
THE COURT: Yeah, but you've got to have an interest you see, you got to have an interest.
MR. FRIEDLAND: The interest is the contract that the members have —
THE COURT: Well if they want to vindicate their contracts tell them to intervene or tell them to make an application to intervene.
MR. FRIEDLAND: They may clearly do that but they would prefer that the trade association litigate these issues on their behalf and the Supreme Court has said that trade associations may do so.
THE COURT: I don't know of any case that says that you may vindicate a specific contract in which you don't have an interest.
....
THE COURT: Yeah. Well I'm trying to define the association's interest separately and apart from the contractors' interests. The...
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