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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1987
- **Citation:** 480 U.S. 946

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1815%3A2. Public record. Not legal advice.