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National Association of Home Builders v. United States Army Corps of Engineers

November 6, 2007

NATIONAL ASSOCIATION OF HOME BUILDERS, PLAINTIFF,
v.
UNITED STATES ARMY CORPS OF ENGINEERS, ET AL., DEFENDANTS,



The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Document No. 12

MEMORANDUM OPINION DENYING NATURAL RESOURCES DEFENSE COUNCIL'S MOTION TO INTERVENE

I. INTRODUCTION

Natural Resources Defense Council ("NRDC") requests leave to intervene, arguing that a ruling in favor of the plaintiff would directly harm the interests of NRDC and its members. In addition, NRDC argues that the defendants will be unable to adequately protect its interest. Neither the government nor the plaintiff take a position on NRDC's motion, although the plaintiff suggests that it would be more appropriate for NRDC to participate in the action as an amicus curiae. Because NRDC has not demonstrated constitutional standing, the court denies its motion for mandatory intervention. Because NRDC has not satisfied the considerations for permissive intervention, the court denies that request as well. The court grants NRDC permission to participate in this action as an amicus curiae.

II. FACTUAL & PROCEDURAL BACKGROUND

The Clean Water Act ("CWA"), 33 U.S.C. §§ 1251-1387, endeavors to protect the Nation's resources by prohibiting the discharge of pollutants into navigable waters without a permit. The CWA authorizes defendant Army Corps of Engineers ("the Corps") to issue permits for the discharge of dredged or fill materials into waters of the United States. 33 U.S.C. § 1344. On March 12, 2007, the Corps issued six new Nationwide Permits ("NWP" or "permits"), including NWP 46, which "purports to authorize the discharge of dredged or fill materials into upland ditches." Am. Compl. ¶ 1. The plaintiff is a national trade association whose members include builders of residential and commercial projects, land developers and remodelers. Id. at ¶ 4. The plaintiff challenges the issuance of NWP 46 pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. § 551. The plaintiff argues that ditches are not within the purview of the CWA because, in short, "ditches" fall within the definition of "point source," and "point sources" are "discernable, confined and discrete conveyance[s]," not "navigable waters." Am. Compl. ¶ 14. Moreover, the plaintiff argues, "point sources" cannot constitute "navigable waters" because the statute defines the "discharge of a pollutant" as "any addition of any pollutant to navigable waters from any point source." Id. (emphasis excluded).

The plaintiff filed this action on May 24, 2007 and corrected its complaint on July 16, 2007, bringing suit pursuant to the APA and the CWA. Specifically, the plaintiff asks the court to declare that the Corps has no authority to regulate upland ditches. See generally id. On August 8, 2007, NRDC moved to intervene, arguing that it "and its members have a significant and protected interest in the proper regulation of discharges into [upland ditches]." NRDC's Mot. to Intervene ("NRDC's Mot.") at 2.

III. ANALYSIS

A. Legal Standard for a Motion to Intervene

Federal Rule of Civil Procedure 24 sets forth the requirements for intervention as of right and permissive intervention. FED. R. CIV. P. 24; Fund for Animals, Inc. v. Norton, 322 F.3d 728, 731 (D.C. Cir. 2003). First, Rule 24(a) provides for intervention as of right, stating that [u]pon timely application anyone shall be permitted to intervene in an action . . . when a statute of the United States confers an unconditional right to intervene; or . . . when the applicant claims an interest relating to 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.

Id. As paraphrased by the D.C. Circuit, the rule indicates that an applicant's right to intervene depends on "(1) the timeliness of the motion; (2) whether the applicant claims an interest relating to the property or transaction which is the subject of the action; (3) whether 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; and (4) whether the applicant's interest is adequately represented by existing parties." Fund for Animals, 322 F.3d at 731; see also Jones v. Prince George's County, Md., 348 F.3d 1014, 1017 (D.C. Cir. 2003) (listing the four elements of Rule 24(a) as "timeliness, interest, impairment of interest, and adequacy of representation"). In addition, an applicant must demonstrate that it has standing. Jones, 348 F.3d at 1017-18; Fund for Animals, 322 F.3d at 731-32.

Alternatively, Rule 24(b) authorizes permissive intervention for an applicant who timely files a motion when a federal statute confers a conditional right to intervene or the applicant's claim or defense has a question of law or fact in common with the main action. FED. R. CIV. P. 24(b). In considering a motion for permissive intervention, a court must determine whether the proposed intervention "will unduly delay or prejudice the adjudication of the rights of the original parties."*fn1 Id.

B. The Court Denies NRDC's Motion for Mandatory Intervention Because NRDC has Failed to Demonstrate Standing

A party seeking to intervene as of right, like all plaintiffs, must demonstrate that it has constitutional standing to participate in the action. Fund for Animals, Inc. v. Norton, 322 F.3d 728, 732-33 (D.C. Cir. 2003). NRDC does not squarely address the matter of its standing. It does, however, generally argue that it and its members have "an interest in the protection of all waterbodies, including ditches[, and that] NRDC and its members can be injured by the ecological damage that results from destruction or contamination of unprotected waterways." NRDC's Mot. at 4. Because NRDC is an association, it can demonstrate standing as long as "its members would have standing to sue in their own right, the interests at stake are germane to the organization's purpose, and neither the claim asserted nor the relief requested ...


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