John R. Sand & Gravel Co. v. United States

59 Fed. Cl. 645, 58 ERC (BNA) 1565, 2004 U.S. Claims LEXIS 22, 2004 WL 194070
CourtUnited States Court of Federal Claims
DecidedFebruary 2, 2004
DocketNo. 02-509L
StatusPublished
Cited by22 cases

This text of 59 Fed. Cl. 645 (John R. Sand & Gravel Co. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
John R. Sand & Gravel Co. v. United States, 59 Fed. Cl. 645, 58 ERC (BNA) 1565, 2004 U.S. Claims LEXIS 22, 2004 WL 194070 (uscfc 2004).

Opinion

OPINION

HEWITT, Judge.

The court has before it The Metamora Group’s Motion to Intervene. The members of the Metamora Group (intervenor-appli-cants) seek to intervene as party defendants. Memorandum in Support of the Metamora Group’s Motion to Intervene (Metamora Mem.) at 14. For the following reasons, The Metamora Group’s Motion to Intervene is DENIED.

I. Background1

In this case plaintiff John R. Sand & Gravel Company seeks compensation for defendant’s physical taking of plaintiffs property during the environmental remediation of the Metamora Landfill in Lapeer County, Michigan. Complaint (Compl.) ¶¶ 1, 2, 50-64. Plaintiff is a long-term lessee of property which includes the Metamora Landfill. Id. ¶5, 7, 13. Plaintiff mines sand and gravel on the property. Id. 119-10. The “Metamora Group” is a group of companies which, with one exception, comprise a sub-group of the companies that entered into a court-approved consent decree (Consent Decree) with the United States Environmental Protection Agency (EPA) on March 17, 1993 (Settling Defendants).2 See United States v. BASF-INMONT Corp., 819 F.Supp. 601, 601, 611, 615 (E.D.Mich.1993) (approving Consent Decree). Under the Consent Decree the Settling Defendants were required to undertake and to pay for certain remedial measures to clean up the Metamora Landfill site. Id. at 604-05. Plaintiff was not a party to the Consent Decree, Compl. ¶25; see also BASF-INMONT Corp., 819 F.Supp. at 601 (listing the parties to the Consent Decree in the ease caption), and was not named as a potentially responsible party in connection with the contamination, see Defendant’s Response to Plaintiff’s Proposed Findings of Uncontroverted Fact Dated May 13, 2003 1134 (agreeing with plaintiff that plaintiff “has never been named a potentially responsible party in relation to liability for contamination at the Metamora Landfill”).

In 1996, plaintiff denied Settling Defendants access to the Metamora Landfill site. Compl. Ex. 2 at 6 (containing a copy of Administrative Order Directing Compliance with Request for Access in In re Metamora Landfill Site, No. 97-C-379 (EPA Dec. 18, 1996)). The EPA issued an Administrative Order Directing Compliance with Request for Access (Administrative Order), which ordered John R. Sand & Gravel Company to “grant to U.S. EPA and U.S. EPA’s agents, contractors, subcontractors, consultants and representatives entry and access to all portions of the [Metamora Landfill] Site.” Id. at 7. The Administrative Order was necessary because, “to comply with the terms of the [648]*648Consent Decree, Settling Defendants need[ed] access to the [Metamora Landfill] Site.” Id. at 5. When disputes arose regarding plaintiffs compliance with the EPA’s Administrative Order, defendant filed a complaint in the District Court for the Eastern District of Michigan. Compl. 111140-41. The court enjoined plaintiff “from interfering in any way with the right of EPA, its contractors and representatives ... from entering on or at the Metamora Landfill Site.” Id. Ex. 4 at 1 (containing United States v. John R. Sand & Gravel Co., No. 97-75497 (E.D.Mich. Mar. 23, 1998) (order granting preliminary injunction)). Further, “[t]he Court acknowledge[d] that the Metamora Landfill Settling PRP Group ha[d] been designated as an EPA representative for purposes of implementation of EPA’s selected remedies.” Id. Ex. 4 at 1-2. It is the actions carried out by defendant, “its agents, and their subcontractors, consultants, or representatives ... in order to implement the remedy at the Meta-mora Landfill” which plaintiff alleges caused the taking of plaintiffs property. Id. HIT 51, 56.

The members of the Metamora Group assert that they are entitled to intervention of right and, in the alternative, that they meet the test for allowing permissive intervention. Metamora Mem. at 4. Plaintiff opposes the Metamora Group’s motion to intervene. See Plaintiff John R. Sand & Gravel Company’s Response to the Metamora Group’s Motion to Intervene (Pl.’s Resp.) at 7, 35 (“The Metamora Group fails to demonstrate that it meets any of the criteria for intervention of right or any of the criteria for permissive intervention.”).

II. Discussion

A. Legal Framework

Intervention is governed by Rule 24 of the Rules of the United States Court of Federal Claims (RCFC). Intervention may be allowed either as a matter of right under Rule 24(a) or permissively under Rule 24(b). Although “the requirements for intervention are to be construed in favor of intervention,” Am. Mar. Transp., Inc. v. United States, 870 F.2d 1559, 1561 (Fed.Cir.1989), courts routinely deny motions to intervene, see, e.g., id. at 1563 (affirming denial of motion to intervene because applicant “had not claimed an interest recognized under Rule 24(a)”).

The rule governing intervention of right states:

Upon timely application anyone shall be permitted to intervene in an action ... 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.

RCFC 24(a). While it is true that “[i]f the movant satisfies the elements of RCFC 24(a), the court is without discretion, and the movant ‘shall be permitted to intervene,’ ” Fifth Third Bank v. United States, 52 Fed.Cl. 202, 203 (2002) (quoting RCFC 24(a)), courts are nevertheless “entitled to the full range of reasonable discretion in determining whether the[ ] requirements [for intervention of right] have been met,” Rios v. Enter., Ass’n Steamfitters Local Union No. 638, 520 F.2d 352, 355 (2d Cir.1975); see also 6 James Wm. Moore, Moore’s Federal Practice § 24.03[5][a], at 24-51 (3d ed. 2002) (“Despite the label ‘intervention of right,’ courts exercise some discretion in weighing a motion to intervene under Rule 24(a)(2).”).3

[649]*649The rule governing permissive intervention states:

Upon timely application anyone may be permitted to intervene in an action ... when an applicant’s claim or defense and the main action have a question of law or fact in common. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.

RCFC 24(b). The rule specifically vests the court with discretion in deciding whether to allow permissive intervention. “Trial courts possess ‘broad discretion in resolving applications for permissive intervention.’” Moore, supra, § 24.10[1], at 24-55 (quoting Rosenshein v. Kleban, 918 F.Supp. 98, 106 (S.D.N.Y.1996)).

B. Timeliness

Under both Rule 24(a) and Rule 24(b), the application to intervene must be “timely.” RCFC 24(a), (b). The court determines timeliness from all the circumstances and exercises “sound discretion” in making its determination. NAACP v. New York, 413 U.S. 345, 366, 93 S.Ct.

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Bluebook (online)
59 Fed. Cl. 645, 58 ERC (BNA) 1565, 2004 U.S. Claims LEXIS 22, 2004 WL 194070, Counsel Stack Legal Research, https://law.counselstack.com/opinion/john-r-sand-gravel-co-v-united-states-uscfc-2004.