Petition for Writ of Certiorari — City of Irvine v. County of Orange

No. —

IN

Supreme Court of

OCTOBER

THE City oF Ik

COUNTY OF ORANG

PETITION FOR A W

TO

UNITED STATES (€

FOR THE NI

(| ———ne El ail

es - §upren ae ee suoreme C

SOS ee Ft

ian 30 BS! JAN 3

1° sOSEPH F _— E

| RK JOSEPH F

‘HE

the United States

ERM, 1986

‘INE, Petitioner,

et al., Respondents.

IT OF CERTIORARI

"HE

JURT OF APPEALS

TH CIRCUIT

(EL, JACOBS & ELLSWORTH

wenty-Fifth Floor

301 Century Park East

os Angeles, California 90067

elephone: (213) 556-2000

1 E. McDermott,

ounsel of Record

resa M. Marchlewski

ph E. Thomas

N. Sorrell

Attorneys for Petitioner

QUESTION PRESENTED

Whether the Ninth Circuit erred in ruling that the petition-

er City of Irvine’s Motion to Intervene in this case was untimely

when the Motion was filed one month after Irvine learned that

its interests were no longer represented herein and nearly three

months before the proposed settlement of the case was sub-

mitted to the District Court.

il

LIST OF PARTIES

The parties to the proceedings below were the Petitioner,

City of Irvine (“Irvine”), and the Respondents, County of

Orange (“County”), Air California, American Airlines,

America West Airlines, Continental Airlines, Inc., Frontier

Airlines, Inc., Jet America, Pacific Southwest Airlines, Republic

Airlines, Inc., Western Airlines, Inc., Alaska Airlines, Inc., Muse

Air Corporation, Trans World Airlines, Inc., United Airlines,

Inc.. Federal Aviation Administration (““FAA”), McDonnell

Douglas Corporation, City of Newport Beach (‘“‘Newport”),

Stop Polluting Our Newport Corporation (“SPON”’’), and

Airport Working Group of Orange County, Inc. (“AWG’’).

ill

TABLE OF CONTENTS

PAGE

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I I sch cscsscisncsnsbsunanscisenenccnsnssenséoesescessneseesess 2

I ass csneussoensicncccveanacascossvccsnnsnceens 2

I. Jurisdiction and the Disposition Below ...........................-. 2

Nas csictesnshandacessonesuccsecosssesss 3

REASONS FOR GRANTING THE WRIT.......................::::ceeeee y

I. The Decision Below That Irvine’s Motion To Intervene

Was Untimely Raises Important And Unresolved Fed-

EER ESSA? 0S 4

II. There Is A Conflict Between The Circuit Courts Of

Appeals With Respect To The Timeliness Requirements

en IIE OO I ccnnnccssaccchesceccccncceccseccscass 14

Ili. The Decision Below That Irvine’s Motion To Intervene

Was Untimely Was Erroneous And Inequitable............... 16

ics trlherascliasehinduliedanecesnsciadseusindaesancevscsuhsaseces 22

iv

TABLE OF AUTHORITIES

a

CASES PAGE(S)

Alaska v. American Can Co., 358 U.S. 224. 79 S. Ct. 274, 3

ea Ue BOT © OUD ccccccdoddcncismintslaiedadstadeeiniensainieeiiededimiacecad 13

Andrus v. Utah, 446 U.S. 500, 100 S. Ct. 1803, 64 L.Ed.2d

SEG EE By :ccdaveitascinedenthibettanatacsianiinicnsicnaimeainianial 10, 13

Bingler v. Johnson, 394 U.S. 741, 59S. Ct. 1439, 22 L.Ed.2d

re © FD onecisasuk knceccdsnase dedcceceaevideestensadeas dead ieiiennbiandiana 14

City of Irvine v. Air California, et al., 799 F.2d 535 (9th Cir.

FP PD vicnsaseschiscisdsinsnnedninsaaslonaiendaannbgasasiieiteanatematnaaaiiiemaimadia diated l

Commissioner v. Standard Life & Accident Insurance Com-

pany, 433 U.S. 148, 97S. Ct. 2523, 53 L.Ed.2d 653 (1977).. 13

Culbreath v. Dukakis, 630 F.2d 15 (Ist Cir. 1980) ....000..0..... 15

Federal Trade Commission v. Jantzen, Inc., 386 U.S. 228, 87

SC, SOR, Ce ee Wc osc 13

Hickman v. Taylor, 329 U.S. 495, 67 S. Ct. 385, 91 L.Ed. 451

oe fp Pe oN coats RL MONEE REEL Oy Fs. SSR ee 9

Legal Aid Society of Alameda County v. Dunlop, 618 F.2d 8

fe | RR ereeier EOe en ee aso 16, 18, 19

NAACP v. New York, 413 U.S. 345, 93 S. Ct. 2591, 37

Be Ree ee IE OO cc ccncrcsnsekces heaniobitestinabnidmreseoucaeisttnandatnciaiina ate 16

Patterson v. Lamb, 329 U.S. 539, 67 S. Ct. 448, 91 L.Ed. 485

Cl ROPIET Wino cibccee ec tenabeaputksgusdieaidielaeibasaiiinadmbainciadh aati: .13

Schlagenhauf v. Holder, 379 U.S. 104, 85 S. Ct. 234, 13

BE he eS: RR CE Fier BE kd i Ee elec 9

Stallworth v. Monsanto Co., 558 F.2d 257 (5th Cir. 1977)....... 15

United Airlines, Inc. v. McDonald, 432 U.S. 385, 97 S. Ct.

PF ey ge we Ok yp RO Ree een oe 16,17, 18

United Nuclear Corp. v. Cannon, 696 F.2d 141 (Ist. Cir.

3 oh RIE ALES eee CY AGES ane Sol Red NEMO rae R Et ano ae 15

United States v. Coleman, 390 U.S. 599, 88 S. Ct. 1327, 20

cE HE A We ITI Tin cis dnesskiecs Goshen daskcnandbaiantenrienitacanteadibicenaiiadialaiies 10

United States v. Jefferson County, 720 F.2d 1511 (11th Cir.

|b ERS ee ae ese ee MRR MeN Se Nas y eo d a Ma 15

United States v. Mitchell, 463 U.S. 206, 103 S. Ct. 2950, 77

Boe oS ) Ee ae ier one aoc Wem! i3

U.S. v. O'Malley, 383 U.S. 627, 86 S. Ct. 1123, 16 L.Ed.2d

PR A WIND siccscsezcsscissssi desnsSinn hteiciesc ib tacedenttsiibaci alana maa iat 14

United States v. State of Oregon, 745 F.2d 550 (9th Cir.

4) eee Sa ee 15, 19, 20, 21

United States v. Stringfellow, et al., 783 F.2d 821 (9th Cir.

I ee 11,12

United Steelworkers v. Usery, 429 U.S. 05, 97 S. Ct. 611, 50

Eade GEE 0 TPIT Pissss.cceozlat Csccenptautceanbendiacidaumnanebeaaadaneaidams 13

MISCELLANEOUS PAGE

7a C. Wright and A. Miller, Federal Practice and Procedure,

ee ee OE F ccnciseetnbedatberaiitentiebecisncintsntinmnssenenss 19

In THE

Supreme Court of the United States

OcTOBER TERM, 1986

Tue Crry oF IRVINE,

Petitioner,

v.

COUNTY OF ORANGE,

AiR CALIFORNIA, AMERICAN AIRLINES,

AMERICA WEST AIRLINES, CONTINENTAL AIRLINES, INC.,

FRONTIER AIRLINES, INC., JET AMERICA,

PaciFic SOUTHWEST AIRLINES, REPUBLIC AIRLINES, INC.,

WESTERN AIRLINES, INC., ALASKA AIRLINES, INC.,

MuSE AIR CORPORATION, TRANS WORLD AIRLINES, INC.,

UNITED AIRLINES, INC., FEDERAL AVIATION ADMINISTRATION,

McCDONNELL DOUGLAS CORPORATION,

City OF NEwWporT BEACH,

Stop POLLUTING OuR NEWPORT CORPORATION,

AIRPORT WORKING GROUP OF ORANGE COUNTY, INC.

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Petitioner, The City of Irvine, respectfully prays that a writ

of certiorari issue to review the judgment and epinion of the

United States Court of Appeals for the Ninth Circuit, entered in

the above-entitled proceeding on September 9, 1986.

OPINIONS BELOW

The opinion of the Court of Appeals for the Ninth Circuit

affirming the decision of the District Court is reported at 799

F.2d 535 (9th Cir. 1986). The United States District Court for

the Central District of California ( Hatter, D.J.) denied the City

of Irvine’s motion to intervene on October 21, 1985.

JURISDICTION

Invoking federal jursidiction under 28 U.S.C. Section 1331

and 28 U.S.C. Section 1337, the petitioner brought this suit in

the Central District of California. The respondent County of

Orange also invoked the pendent and ancillary jurisdiction of

the District Court with respect to related state law claims under

the California Environmental Quality Act (Public Resources

Code §§ 21000 et seg.) and the implementing California State

CEQA regulations and guidelines (14 Cal. Admin. Code

$§ 15000 ef seq.).

Petitioner invoked the jurisdiction of the Court of Appeals

for the Ninth Circuit under 28 U.S.C. Section 1291. The Ninth

Circuit’s opinion affirming the Central District’s decision was

filed on September 9, 1986. Petitioner’s petition for rehearing

in the Ninth Circuit was denied on or about November 4, 1986.

Jurisdiction of this Court to review the judgment of the

Ninth Circuit is invoked under 28 U.S.C. Section 1254(1).

2

STATUTE INVOLVED

Fed. R. Civ. Proc., Rule 24, states as follows:

‘“(a) INTERVENTION OF RIGHT. Upon timely

application anyone shall be permitted to intervene in

(2) When the applicant claims an interest

relating to the property or transaction which is

the subject of the action and he is so situated that

the disposition of the action may, as a practical

matter, impair or impede his ability to protect

that interest, unless the applicant’s interest is

adequately represented by existing parties.

(b) PERMISSIVE INTERVENTION. Upon timely

application, anyone may be permitted to intervene in

an action. ...

(2) 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 prej-

udice the adjudication of the rights of the original

parties.”

STATEMENT OF THE CASE |

I. |

JURISDICTION AND THE DISPOSITION BELOW |

Jurisdiction of the District Court was invoked under 28

U.S.C. Section 1331 based upon a civil action arising under the |

Constitution and the laws of the United States and under 28

U.S.C. Section 1337 because the action arose under acts of

Congress regulating commerce. |

3

In addition thereto, responderit, County, invoked the pen-

dent and ancillary jurisdiciion of the District Court with respect

to related state law claims under the California Environmental

Quality Act (Public Resources Code Sections 21000 er seq.),

and the implementing California State CEQA regulations and

guidelines, 14 Cal. Admin. Code Sections 15000 ef seg. (the

““Guidelines’”’).

The County also invoked the District Court’s ancillary

jurisdiction over the aforementioned state law claims because

they are related to and affected by the federal issues in the

Complaint.

II.

STATEMENT OF FACTS

The County is the proprietor of John Wayne Airport

(“JWA”), the only commercial air carrier airport in Orange

County. (CR 1, pp. 1, 8; CR 7, pp. 1, 8; AER, pp. 2, 9, 34, 41.)

On February 26, 1985, the County approved and adopted

the Airport Project, its plan for the future development of

commercial airline activity at JWA. Among other things, the

Airport Project proposed limitations on the number and type of

commercial jet aircraft which could utilize JWA, limitations on

the maximum number of commercial aircraft passengers utiliz-

ing the airport, and a square footage limitation on JWA’s

terminal size. Significantly, the Airport Project did not address

or alter the County’s historic opposition to commercial use of

the El Toro Marine Corps Air Station (“El Toro MCAS”’’),

which is located southeast of JWA, adjacent to Irvine. (CR

125, p. 2; AER, p. 80.)

Petitioner, Irvine, is bordered to the south and east by the

El Toro MCAS. Since approximately 1942, El Toro MCAS has

been, and continues to be, operated solely as a military air base.

Until recently, the County has continually expressed its opposi-

4

tion to utilization of El Toro MCAS for anything other than a

military air base, and such utilization of the El Toro MCAS was

neither proposed nor discussed.

In fact, prior to adoption of the Airport Project, the County

was on record, via resolutions of its Board of Supervisors and

the adoption of its General Plan, as opposing any commercial

use of El Toro MCAS. Both Irvine’s and the County’s General

Plan recognize El Toro MCAS as being within Irvine’s “sphere

of influence.” (CR 125, p. 26; AER, p. 104.)

Both Irvine’s and the County’s vehement opposition to any

civilian use of El Toro MCAS was well acknowledged and

recognized via County Resolutions. On or about October 12,

1982, the County had adopted Resolution No. 82-1542 which,

among other things, recognized that: (a) planning and devel-

opment of land uses and infrastructure facilities surrounding El

Toro MCAS assumed continued military use; (b) the estab-

lishment of a commercial airport at El Toro MCAS would cause

severe environmental impacts on South Orange County and

Irvine; and (c) joint civilian and military use of El Toro MCAS

would require existing residential neighborhoods to be con-

verted to other land uses. (CR 125, p. 26; AER, p. 104.)

County Resolution No. 82-1542 also reaffirmed the Coun-

ty’s historic opposition to commercial airline use of El Toro

MCAS, which opposition had previously been expressed by

way of Resolution No. 80-215 dated February 6, 1980, and

reassured Irvine and its residents of the County’s long-standing

and abiding commitment to oppose joint civilian and military

use of El Toro MCAS. (CR 125, p. 26; AER, p. 104.)

Consistent with Resolution No. 82-1542, Irvine’s General

Plan assumed that El Toro MCAS would continue as military

use only. Specifically, Irvine’s land use element, which includes

within its parameters the unincorporated area adjacent to El

Toro MCAS, as well as the areas currently within the City of

Irvine bordering the military air base, and the noise elements of

the General Plan, rely heavily upon this assumption. (CR 125,

5

pp. 26-27; AER, pp. 104-105.) The General Plan of Orange

County also assumes that El Toro MCAS would remain in

government use throughout the period of the Plan (the year

2005 ).

Prior to adoption of the Airport Project, and pursuant to

the requirements of the California Environmental Quality Act

(California Public Resources Code Section 21000, et seg.) and

the National Environmental Policy Act (42 U.S.C. Section

4321, et seq.), a study was prepared by the County and Federal

Aviation Administration concerning the proposed environmen-

tal effects of the Airport Project. This study has been desig-

nated by the County as Environmental Impact Report 508 and

Environmental Impact Statement 508 (hereinafter referred to

as “EIR 508/EIS”). (CR 1, pp. 14-17; CR 7, pp. 14-17; AER,

pp. 15-18, 47-50.)

After adopting the Airport Project, and in anticipation of

various legal actions which would be taken against the County

challenging the Project and adequacy of EIR 508/EIS, the

County, on March 6, 1985, filed this action naming as defen-

dants various airlines, community groups and others which the

County recognized to be interested in the resolution of the

proposed Airport Project. This action sought, among other

things, a declaratory judgment as to the lawfulness and ade-

quacy of the Airport Project and the studies relied upon for its

implementation. (CR 1, pp. 27-29; CR 7, pp. 28-41; AER, pp.

28-30, 61-64.)

Also named as defendants were “Doe Defendants |

through 1,000,” alleged by the County to be “persons interested

in the subject matter of this action, in whole or in part, and who

take positions in respect of one or more of the controversies

alleged in this complaint contrary and adverse to the positions

of the plaintiff.” (CR1, pp. 7-8; CR7, p. 8; AER, pp. 8-9, 41.)

At the inception of this litigation, the Airport Project and

lawsuit focused exclusively on the proposed expansion of JWA,

and the caps and limitations which the County sought to impose

6

on the air carrier use of JWA. Although JWA is located in

unincorporated County territory adjacent to the City of Irvine,

the County did not join Irvine as a defendant.

The County expressly alleged that the action was brought

“to afford all interested and affected parties an opportunity to

litigate their respective and related claims in a single forum.”

(CR 1, p. 1; CR 7, p. 2; AER, pp. 2, 35.) In so doing, the

County named as defendants the FAA, various airlines who

currently serve, or have expressed an interest in serving,

travelers utilizing JWA. Newport, located adjacent to JWA,

groups purporting to represent citizens residing in Newport,

and various organizations generally opposed to any increase in

operations at JWA, and a corporation engaging in the manufac-

ture and sale of commercial aircraft. (CR 1, pp. 3-7; CR 7, pp.

3-8; AER, pp. 3-8, 36-41.)

At the time the County filed its complaint, Irvine, as a

municipality contiguous to JWA, had an interest in promoting

and protecting certain of the issues raised therein. Because the

litigation and underlying EIR 508/EIS were solely involved

with the proposed expansion and limitations on air carrier

traffic at JWA, Irvine’s interests were adequately represented by

certain of the parties named as defendants, including Newport,

the FAA and citizens groups.

On or about August 20, 1985, Irvine first became aware of

the existence of a settlement proposed by certain parties to this

litigation (the “Settlement Agreement”). (CR 125, p. 27;

AER, p. 105.) The Settlement Agreement contemplates both

military and civilian use of El Toro MCAS, which joint use

would have a significant and adverse impact on the planning,

development and environment of the City of Irvine. (CR 125,

p. 26; AER, p. 104.)

7

The terms of the Stipulated Judgment’ dramatically alter

the scope of the Airport Project, the County’s position with

respect to the commercial use of El Toro MCAS, and the

position of the settling defendants with respect to the adequacy

of EIR 508/EIS.

Specifically, the terms of the Settlement: (a) more severely

restrict the growth of JWA from that set forth in the Airport

Project; (b) recognize that JWA will not satisfy the demand for

air travel in Orange County with the limitations set forth in the

Airport Project and the Settlement: (c) recognize that in

consideration for the settling parties’ execution of the Settle-

ment, the County would implement Resolution No. 85-1231,

which rescinded the County’s opposition to commercial use of

El Toro MCAS; (d) impose a duty on the County to cooperate

with third parties seeking assistance in obtaining federal funds

in establishing other commercial airport operations in Orange

County; (e) terminate the ability of the settling defendants to

litigate the adequacy of EIR 508/EIS as it relates to the Airport

Project and the amendments to the Airport Project resulting

from the Proposed Settlement; and (f) require that a judgment

be entered by the Court establishing the adequacy of EIR

508/EIS with respect to the Airport Project, and the amend-

ments thereto resulting from the Settlement. (CR 175; AER,

pp. 504-526.)

As a result of the Settlement and Resolution No. 85-1231,

the County will now sanction, assist and promote the devel-

opment of El Toro MCAS as a commercial airport. The

Settlement, by way of the Stipulated Judgment, will, without

Irvine’s intervention, forever bar Irvine or any other party from

attacking the adequacy of the EIR 508/EIS or the Airport

1 The Settlement was first filed with the District Court on December 13,

1985, approximately seven weeks after Irvine’s Motion For Leave to Inter-

vene was denied by the trial court. (CR 175; AER, pp. 504-526.) The

District Court entered the “Stipulation for Entry of Judgment by Certain

Settling Parties” on December 13, 1985. (CR 176; AER, pp. 527-530.)

8

Project. Not only has the potential impact of the Airport

Project on Irvine substantially increased, but no party remains

to protect or represent Irvine’s interest in challenging the

adequacy of EIR 508/EIS.

On September 20, 1985, months before the Settlement

Agreement was submitted for court approval, Irvine filed its

Motion For Leave To Intervene pursuant to Fed. R. Civ. P.

24(a) and (b). (CR 126; AER, pp. 70-76.) The motion was

opposed by derendants Newport, SPON, AWG, Pacific South-

west Airlines, and America West Airlines. (CR 140, 141, and

143; AER, pp. 252-333, 334-383, 384-390; CR 149; AER, pp.

398-406. )

Prior to being apprised of the proposed Settlement Agree-

ment, Irvine’s interests were being represented adequately by

other parties herein. Until it became cognizant of the proposed

Settlement Agreement, Irvine had no compelling reason to

intervene in the within action. Recognizing its status as the

municipal entity to be most affected by the proposed Settlement

Agreement, Irvine promptly moved to intervene so as to

adequately protect its rights and interests. Irvine’s motion was

argued on October 21, 1985, and the District Court entered its

final order denying the application to intervene on October 28,

1985. (CR 153, 154; AER, pp. 435-441, 442-443.)

On December 13, 1985, nearly three months after Irvine

filed its motion, the proposed Settlement was finally submitted

to the District Court in the form of a “Stipulation for Entry of

Judgment by Certain Settling Parties.” (CR 175; AER, pp. 504-

526.) On December 13, 1985, the District Court entered a

judgment in accordance with the Stipulation. (CR 176; AER,

pp. 527-530.) The Ninth Circuit affirmed on September 9,

1986. Petitioner’s petition for rehearing in the Ninth Circuit

was denied on or about November 4, 1986.

aT

9

REASONS FOR GRANTING THE WRIT

I.

THE DECISION BELOW THAT IRVINE’S

MOTION TO INTERVENE WAS UNTIMELY

RAISES IMPORTANT AND UNRESOLVED

FEDERAL PROBLEMS.

The Ninth Circuit held below that Irvine’s motion for

intervention as a matter of right and permissively was untimely,

thereby affirming the decision of the District Court denying the

motion. This raises serious, special and important federal issues

with respect to the statutory construction and application of

Fed. R. Civ. Proc., Rule 24, the federal intervention statute,

which should be resolved by this Court.

U.S. Sup. Ct. Rule 17, 28 U.S.C.A. recognizes this Court’s

power of supervision over the federal Courts of Appeals. This

power of supervision has been exercised to review the construc-

tion and application of various of the federal rules of civil

procedure. Hickman v. Taylor, 329 U.S. 495, 67 S. Ct. 385, 91

L.Ed. 451 (1947) (“Case present|ing] an important problem

under Federal Rules of Civil Procedure, 28 U.S.C.A. following

section 723c”); Schlagenhauf v. Holder, 379 U.S. 104, 109, 85

S. Ct. 234, 13 L.Ed.2d 152 (1964) (“case involv[ing] the

validity and construction of Rule 35(a) of the Federal Rules of

Civil Procedure as applied to the examination of a defendant in

a negligence action’’).

The instant matter involves a major dispute with respect to

the timeliness of Irvine’s motion to intervene pursuant to Fed.

R. Civ. Proc., Rule 24. In essence, Irvine contends that the

District Court and the Ninth Circuit erroneously interpreted

and applied Fed. R. Civ. Proc., Rule 24, in ruling that Irvine’s

Motion to Intervene in this case was untimely although it was

filed one month after the existence of the Settlement Agree-

ment, and nearly three months before the Setthkement Agree-

ment was submitted to the District Court in the form of the

10

Stipulation. Since the determination of the proper construction

and application of a federal rule of civil procedure is involved,

this Court may exercise its supervisory powers over the deci-

sions below thereon. Further, as will be shown hereinafter, the

decisions of the District Court and the Ninth Circuit were

erroneous. Therefore, this Court should exercise its powers to

review the instant matter through the issuance of a writ of

certiorari.

In addition, this Court should exercise its power of review

by issuing a writ of certiorari because the construction and

application of Fed. R. Civ. Proc., Rule 24, herein will affect the

disposition of public lands. In United States v. Coleman, 390

U.S. 599, 88 S. Ct. 1327, 20 L.Ed.2d 170 (1968), this Court

granted certiorari to determine whether certain quartzite depos-

its upon public lands for which the respondent had applied for

a patent based on his entry onto and exploration of said lands

constituted a “common variety” of stone under 30 U.S.C.

Section 611. This Court stated that it “granted the Govern-

ment’s petition for a writ of certiorari because of the importance

of the decision to the utilization of public lands.” Jd. at p. 601.

See also, Andrus v. Utah, 446 U.S. 500, 506, 100 S. Ct. 1803, 64

L.Ed.2d 458 (1980) (certiorari granted to resolve “a significant

issue regarding the disposition of vast amounts of public

land”’).

Similarly, this matter involves the disposition of federal

lands, namely, the El Toro MCAS. Therefore, the ultimate

determination of the issue of Irvine’s timeliness under Fed. R.

Civ. Proc., Rule 24, necessarily will have a strategic impact on

the utilization of those public lands. Consequently, Irvine

respectfully requests that the Court grant this petition for a writ

of certiorari.

The need for review by this Court on a writ of certiorari is

augmented by the sheer importance of the disposition of this

case not only to the parties in particular, but to Southern

California generally. Because of Irvine’s proximity to JWA and

wv nen

ore

11

to El Toro MCAS and the obvious environmental interests

impacted by the proposed future growth of JWA and El Toro

MCAS contemplated under the proposed Settlement of the case

into which Irvine seeks to intervene, Irvine’s ‘nterest in a proper

determination of its right to intervene is substantial and in-

disputable. Moreover, as stated above, Irvine’s land use

element, as well as the noise elements of Irvine’s General Plan,

rely heavily on the assumption that El Toro MCAS would

continue as military use only. An erroneous decision below

would thus affect, at the very least, those members of the Irvine

and South Orange County communities who have relied on

these elements and/or on the County’s historic opposition to

commercial use of El Toro MCAS.

It is beyond dispute that Irvine has a substantial interest in

the remedial scheme envisioned by the proposed Settlement.

This interest is prejudiced by the potential stare decisis impact

which the Stipulated Judgment and Settlement will have upon

Irvine. In a similar case, United States v. Stringfellow, et al.,

783 F.2d 821 (9th Cir. 1986), the intervenor (“CNA”) ap-

pealed a denial of its motion to intervene under Fed. R. Civ.

Proc. 24(a). CNA had filed its motion to intervene approxi-

mately three months after the complaint had been filed. The

trial court’s denial of intervention under Fed. R. Civ. Proc.,

Rule 24(a) was reversed on appeal because of the “substantial

interest” the intervenor established in the contemplated settle-

ment and remedial scheme.

On appeal, the Ninth Circuit found that the mere potential

stare decisis impact of the litigation could, as a practical matter,

result in the intervenor being precluded from litigating several

of its claims against other parties to the action. The Stringfel-

low court also determined that the ultimate disposition or

settlement of the litigation would establish a remedial scheme,

in which CNA had a palpable interest. Thus, the Ninth Circuit

stated as follows:

“The disposition of the present litigation will, as a

practical matter establish the applicable remedial

12

scheme. CNA has a palpable interest in that scheme.

Where, as here, a prospective intervenor has demon-

strated a clear interest in the remedial scheme, and

where the prospective intervenor seeks to obtain re-

medies that differ from those sought by the original

plaintiffs, it is reasonable to conclude that disposition

of the litigation may impair the prospective inter-

venor’s ability to protect its interest. That the remedy

established in the present litigation may be challenged

in a subsequent action does not detract from our

conclusion...

“Because of the possible stare decisis effect of this

litigation and because of CNA’s palpable interest in

the remedial scheme, we hold that CNA has

adequately demonstrated that the disposition of the

litigation may, as a practical matter, impair its ability

to protect its interests.” (Jd., at p. 827.)

As in Stringfellow, Irvine, because denied intervention, was

not able to participate in the remedial scheme envisioned by the

proposed Settlement. Irvine’s interests clearly differed from

those of the parties to the Settlement in that Irvine contests the

adequacy of the EIR 508/EIS statements. The remaining non-

settling defendants have not—and cannot—maintain any

claims with respect to the environmental impact reports. As a

result of the Settlement, Irvine’s interests in the environmental

impact have not been addressed, much less protected.

Finally, the Stipulated Judgment indeed has a stare decisis

impact on Irvine in that Irvine will be bound by the adequacy

of the disputed environmental impact statements. No party

remains jn this case who has standing to dispute the

environmental impact reports. Moreover, the applicable limita-

tion period has expired, thereby barring Irvine and any other

party from bringing a separate action to litigate the adequacy of

said reports. Because of the importance of the disposition of

13

this case to Irvine and the communities in Southern California

generally, the Court should grant this Petition and review the

instant matter.

This Court has found “special and important reasons,”

thereby granting a petition for a writ of certiorari, where many

individuals are involved or are affected by the decision below.

Patterson v. Lamb, 329 U.S. 539, 67 S. Ct. 448, 91 L.Ed. 485

(1947); Federal Trade Commission v. Jantzen, Inc., 386 US.

228, 229, 87 S. Ct. 998, 999, 18 L.Ed.2d 11, 13 (1967): United

Steelworkers v. Usery, 429 U.S. 305, 307, 97 S. Ct. 611, 613, 50

L.Ed.2d 502, 506 (1977).

As shown above, the impact of the decision with respect to

the timeliness of Irvine’s motion to intervene will have a severe

impact on, at the very least, the South Orange County area

population of California. In light of the significant impact

which the disposition of this case will have upon numerous

entities and individuals not previously represented herein, this

Court should grant Irvine’s petition for a writ of certiorari and

review the decision of the Ninth Circuit.

This Court also has granted petitions for a writ of certiorari

where especially large amounts of money are involved in

litigation over the issue of statutory construction. See, United

States v. Mitchell, 463 U.S. 206, 103 S. Ct. 2950, 77 L.Ed.2d

580, 211, n.7 (1983); Commissioner v. Standard Life & Acci-

dent Insurance Company, 433 U.S. 148, 77 S. Ct. 2523, 53

L.Ed.2d 653 (1977); Alaska v. American Can Co., 358 US.

224, 79 S. Ct. 274, 3 L.Ed.2d 257 (1959); Andrus v. Utah,

supra, at U.S. 506.

As stated, the determination of this case will have a

significant fiscal impact upon not only the Petitioner and the

Respondents, but upon other members of the South Orange

County community who have chosen to rely on the County's

historic Opposition to commercial use of El Toro MCAS. The

case also raises significant questions pertaining to the proper

interpretation and application of the timeliness requirement of

14

the federal intervention statute upon which this Court should

provide guidance. Finally, as will be shown hereinafter, the

decision below conflicts with decisions of other circuits and was

erroneous and inequitable.

THERE IS A CONFLICT BETWEEN THE

CIRCUIT COURTS OF APPEALS WITH

RESPECT TO THE

TIMELINESS REQUIREMENTS ON A

MOTION TO INTERVENE.

U.S. Sup. Ct. Rule 17, 28 U.S.C.A., which sets forth

considerations governing review On certiorari, states that one

reason that will be considered in determining whether to grant

review on writ of certiorari is whether “a federal court of

appeals has rendered a decision in conflict with the decision of

another federal court of appeals on the same matter; ...” See

also, Bingler v. Johnson, 394 U.S. 741, 59 S. Ct. 1439, 22

L.Ed.2d 695 (1969); U.S. v. O'Malley, 383 U.S. 627, 86 S. Ct.

1123, 16 L.Ed.2d 145 (1966). As shown below, such a conflict

exists with respect to the requirement of timeliness in filing a

motion to intervene under Fed. R. Civ. Proc., Rule 24, the

federal intervention statute. Therefore, this Court should grant

Irvine’s petition for a writ of certiorari to harmonize the

decisions of the various circuit courts.

As shown hereinafter, the Ninth Circuit test for determin-

ing timeliness is set forth in United States v. State of Oregon,

745 F.2d 550 (9th Cir. 1984). In Oregon, the Ninth Circuit

stated that timeliness is determined by considering three fac-

tors: (1) the stage of the proceeding; (2) the prejudice to other

parties; and (3) the reason for and length of the delay. (/d., at

p. 552.)

On the other hand, the test for determining timeliness of a

motion to intervene utilized in other circuits is quite different

15

than the Ninth Circuit test set forth above. For example, the

Eleventh Circuit test, as articulated in United States v. Jefferson

County, 720 F.2d 1511 (11th Cir. 1983), is as follows:

“A district court must consider four factors in assess-

ing timeliness, namely (1) the length of time during

which the would-be intervenor knew or reasonably

should have known of his interest in the case before he

petitioned for leave to intervene; (2) the extent of

prejudice to the existing parties as a result of the

would-be intervenor’s failure to apply as soon as he

knew or reasonably should have known of his interest;

(3) the extent of prejudice to the would-be intervenor

if his petition is denied; and (4) the existence of

unusual circumstances militating either for or against

a determination that the application is timely.” (Jd.,

at p. 1516.)

Thus, a clear conflict exists between the test for determin-

ing the timeliness of a motion to intervene utilized in the Ninth

Circuit and the timeliness test utilized by the Eleventh Circuit.

Specifically, the Ninth Circuit timeliness test fails to consider in

any manner the third factor set forth in the Eleventh Circuit

test: the extent of prejudice to the would-be intervenor if his

petition is denied.

Not only is the Ninth Circuit test for determining the

timeliness of a motion to intervene in conflict with the decisions

of the Eleventh Circuit, it is in conflict with the decisions of

other circuits. See, United Nuclear Corp. v. Cannon, 696 F.2d

141 (ist Cir. 1982), Culbreath v. Dukakis, 630 F.2d 15, 20-25

(Ist Cir. 1980) (First Circuit test uses same factors utilized by

the Eleventh Circuit ); Stallworth v. Monsanto Co., 558 F.2d 257

(Sth Cir. 1977) ( Fifth Circuit test uses same factors utilized by

the Eleventh Circuit).

As shown above, the denial of Irvine’s motion to intervene

will severely prejudice Irvine and its citizens. As stated, Irvine's

General Plan and land use element assumed that El Toro

16

MCAS would continue as military use only. Consequently,

future planning and development of Irvine will be severely

affected by the disposition of Irvine’s motion to intervene.

Moreover, because El Toro MCAS is adjacent to Irvine and is

within Irvine’s sphere of influence, denial of Irvine’s motion

raises serious questions about the ability of Irvine to participate

in democratic self-planning.

Since Irvine will suffer great prejudice if its petition is

denied, the determination of the timeliness of its motion to

intervene would have been different under the timeliness test

utilized by other circuits. Thus, this Court is presented with a

conflict between circuits with respect to the factors considered

in determining the timeliness of a motion to intervene. There-

fore, this Court should exercise its discretion and review this

matter upon writ of certiorari.

THE DECISION BELOW THAT IRVINE’S

MOTION TO INTERVENE WAS UNTIMELY

WAS ERRONEOUS AND INEQUITABLE.

The Ninth Circuit’s finding that Irvine failed to intervene

on a timely basis was clearly erroneous and an abuse of

discretion insofar as the Ninth Circuit clearly ignored the

changed circumstances established by Irvine in the District

Court and apposite case authority affirmatively establishing that

Irvine’s motion was timely.

In determining whether a motion for intervention is timely.

the Court must look to “all of the circumstances.” NAACP vy.

New York, 413 U.S. 345, 93 S. Ct. 2591, 37 L.Ed.2d 648

(1973). In analyzing the timeliness element, the most relevant

circumstance “is when the intervenor became aware that its

interest would no longer be protected adequately by the

parties.” Legal Aid Society of Alameda County v. Dunlop, 618

F.2d 8 (9th Cir. 1980), citing United Airlines, Inc. v.

17

McDonald, 432 ©).S. 385, 97 S. Ct. 2464, 53 L.Ed.2d 423

(1977). As will be demonstrated herein, under the Ninth

Circuit’s decisions, Irvine’s motion was timely, as it was made

immediately after it discovered that “its interest would no

longer be protected adequately by the parties.”

The critical circumstaace for determining timeliness in the

instant case is that on about August 20, 1985, Irvine first

became aware of the possibility of Settlement. (CR 125, p. 27;

AER, p. 105.)

Prior to this date, Irvine’s only interest in this litigation was

having the District Court take note of the affirmative defenses

and/or claims concerning the County’s request for a declaratory

judgment as to the adequacy of EIR 508/EIS, and its right to

implement the Airport Project. Irvine’s interests were, how-

ever, adequately represented by other parties herein, namely,

Newport, the FAA and the citizens groups.

Indeed, prior to publication of articles concerning the

proposed Settlement in the local media, it would have been

sheer speculation for Irvine to assume that any settlement terms

would be acceptable to all the parties, or harmful to Irvine,

much less divine the specific settlement terms through oblique

and often inaccurate newspaper accounts of the “settlement

discussions.”

Even under the Ninth Circuit’s test for “timeliness,” Ir-

vine’s application should have been granted. The pendency of

the proposed Settlement clearly constituted a changed circum-

stance, insofar as it opened up the possibility of new and

expanded negotiations regarding the utilization of El Toro

MCAS as an alternative to JWA. Prior to that date, the Airport

Project litigation, for all practical purposes, merely involved

proposals relating to JWA. By injecting into the proposed

Settlement terms that directly impacted on the utilization of the

El Toro MCAS (within the City of Irvine’s sphere of influence )

and proposed expansion of air operations at the air base, the

Settling parties, at the eleventh hour, themselves transformed

the nature and character of the Airport Project litigation.

18

Neither the settling parties nor the District Court could

conceivably have expected Irvine to anticipate such a rapid turn

of events at the outset of the Airport Project litigation. Irvine

filed its Motion to Intervene approximately one month after it

learned of the proposed Settlement and the proposed terms

thereof that directly impacted on the utilization of the El Toro

MCAS. In order for Irvine’s motion to have been timely under

the decisions of the District Court and the Ninth Circuit below,

it would have been incumbent upon Irvine to know the

unknowable in advance, i.e., that the parties to this action had

proposed settlement terms that affected the utilization of El

Toro MCAS. As Irvine sought leave to intervene shortly after

being apprised of these changed circumstances, Irvine’s motion

was timely.

The test for determining whether a motion for intervention

is timely is set forth in Legal Aid Society of Alameda County v.

Dunlop, 618 f.2d 48 (9th Cir. 1980), wherein the court held:

“(T]he relevant circumstances here for determining

timeliness is when the intervenor became aware that

its interests would no longer be protected adequately

by the parties: this was the precise issue decided in

United Airlines, Inc. v. McDonald, 432 U.S. 385, 394,

97S. Ct. 2464, 2469, 53 L.Ed.2d 423 (1977).” Id., at

p. 50.

In McDonald, the Supreme Court ruled that a party who

had been a member of a plaintiff class was entitled to intervene

to appeal the District Court’s ruling striking the complaint’s

class allegations, which ruling was made some four years

earlier. Intervention was allowed because the intervenor

learned only at that late date that the remaining defendants

would not bring an appeal upon final resolution of the matter in

the District Court.

In permitting intervention, this Court expressly found that

the critical factor in determining timeliness was the point in

time the would-be intervenor learned its interests were no

19

longer being adequately protected by the parties to the action.

Thus, the Supreme Court set a standard recognized by the

Ninth Circuit in Dunlop, requiring that the timeliness of a

motion for intervention be considered from the point in time at

which the intervenor’s interests were no longer adequately

represented.

Further, in analyzing the timeliness requirement, a court

must consider when the applicant could have intervened, and

weigh the lapse of time in light of the circumstances of the case.

As stated by a federal commentator:

“In the exercise of its discretion the court of course

will consider the time element itself but this should not

be judged in a vacuum. The requirement of timeliness

is not a means of punishment for the dilatory and the

mere lapse of time by itself does not make an

application untimely. The court must consider wheth-

er the applicant was in a position to seek intervention

at an earlier stage in the case and must weigh the

lapse of time in the light of all the circumstances of the

case.” 7A C. Wright and A. Miller, Federal Practice

and Procedure. § 1916 at p. 574 (1972). See also,

United States v. State of Oregon, 745 F.2d 550 (9th

Cir. 1984).

Petitioner submits that the case of United States v. State of

Oregon, supra, is dispositive on this issue.

In Oregon, the State of Idaho moved for leave to intervene

to participate in negotiations for a modified management plan

relating to intra-state fishing rights in the Columbia River and

its tributaries. The motion for leave to intervene was filed

Sifteen years after the commencement of litigation, and six years

after all parties to the litigation signed a plan to manage the

fisheries which was subsequently approved by the District

Court.

Approximately six years thereafter, when it became appar-

ent that certain of the signatories to the management plan were

20

withdrawing and the plan would be renegotiated, Idaho moved

for leave to intervene, citing changed circumstances. The

District Court denied the motion, claiming that Idaho had

failed to meet the timeliness requirement of Fed. R. Civ. P.

24(a)(2). |

In reversing the decision, the Ninth Circuit noted:

“In determining timeliness, this court has stated

that it looks to three factors: (1) the stage of the

proceeding; (2) the prejudice to other parties; and

(3) the reason for and length of the delay. [Citations

omitted.] Mere lapse of time alone is not determina-

tive. [Citation omitted.] Idaho gives changed cir-

cumstances—the possibility of new and expanded

negotiations—as a major reason for its attempted

intervention at this time. This change of circumstance,

which suggests that the litigation is entering a new

stage, indicates that the stage of the proceeding and

reason for delay are factors which militate in favor of

granting the application. [Citations omitted.].” (Jd.,

at p. 552.)

The Ninth Circuit’s rationale in Oregon is equally per-

suasive herein. Because the terms of the settlement and

resolutions contemplated therein clearly constituted a changed

circumstance and a new stage of the litigation, Irvine’s request

to intervene was timely and should have been so recognized by

the District Court and the Ninth Circuit.

The District Court’s finding that Irvine’s intervention

would prejudice the settling parties (RT, p. 41; AER, p. 488),

which was affirmed by the Ninth Circuit, also clearly con-

stituted an abuse of discretion and was unsupported by the

record. It was not until September 6, 1985 that the settling

parties affixed their signatures to the “Stipulation for Entry of

Final Judgment By Settling Parties.” More significantly, the

Settlement Agreement had not even been submitted for court

approval at the time the motion was argued. (CR 125; CR 175;

21

CR 176; AER, pp. 142, 504-526, 527-530.) Thus, any delay

between the time Irvine first learned of the proposed settlement

and the time it filed the instant motion—approximately four

weeks—did not cause any palpable prejudice to the parties

herein. Indeed, at the time the motion was argued, respond-

ents’ conclusory ciaims of prejudice were wholly unsupported

by any facts.

Nor was the District Court, or the Ninth Circuit affirmance

thereof, correct in premising its ruling on the claim that the

mere potential unraveling of the then-proposed settlement

warranted denying Irvine’s motion. (RT, pp. 41-42; AER, pp.

488-489. )

In so ruling, the District Court and the Ninth Circuit

obviously ignored the fact that any “prejudice” to be suffered

by the settling parties was the product of their own desire to

forge a settlement agreement which severely impeded and

impinged upon the rights of an adjacent community which was

not a party to the litigation.

To allow the settling defendants to base key portions of

their agreement on terms and conditions affecting a third party

such as Irvine, then allow the same to claim “prejudice” when

that very party seeks to inject itself into the settlement process,

is inherently inequitable.

In attempting to intervene, Irvine was merely seeking to

protect its own interests and the interests of its citizens. Given

the City of Irvine’s legitimate interest in the proposed settle-

ment, Irvine should have been afforded the opportunity to

participate in the negotiation and discussion of said agreement

on the same basis as the settling parties. (See generally, United

States v. State of Oregon, supra, 745 F.2d at p. 553.)

Based on the foregoing, Irvine submits that it has adequat-

ely demonstrated that its motion to intervene was timely, and

that the decisions of the District Court and the Ninth Circuit

were erroneous and inequitable.

22

CONCLUSION

As shown above, there are special and important reasons

for this Court to grant this Petition for Certiorari. The decision

of the Ninth Circuit was erroneous and the timeliness test

utilized by the Ninth Circuit is not in harmony with the test

utilized by other circuits. For the foregoing reasons, this

Petition for Certiorari should be granted.

Respectfully submitted,

MEMEL, JACOBS & ELLSWORTH

25th Floor

1801 Century Park East

Los Angeles, California 90067

(213) 556-2000

JOHN E. MCDERMOTT

(Counsel of Record )

THERESA M. MARCHLEWSKI

JOSEPH E. THOMAS

PAUL N. SORRELL

Attorneys for Petitioner

Dated: January 30, 1987