Appendix B — City of Santa Clarita, California v. Los Angeles County, California (No. 05-1462)

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UNITED STATES COURT OF APPEALS

NINTH CIRCUIT

CEMEX, INC., a Louisiana corporation,

Plaintiff-Appellee,

v.

COUNTY OF LOS ANGELES,

Defendant.

CITY OF SANTA CLARITA,

Applicant for Intervention-Appellant.

No. 02-56364

D.C. No. CV-02-00747-DT

(cite as: 92 Fed.Appx. 457)

Argued and Submitted Nov. 3, 2003

Decided Feb. 24, 2004

Appeal from the United States District Court for the

Central District of California; Dickran M. Tevrizian,

District Judge, Presiding.

Before: PREGERSON, FERNANDEZ, and BERZON,

Circuit Judges:

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MEMORANDUM

FN * This disposition is not appropriate for

publication and may not be cited to or by the courts

of this circuit except as provided by 9th Cir. R. 36-3.

The City of Santa Clarita (“City”) appeals the district

court’s interlocutory order denying its renewed motion to

intervene as a defendant in an action by CEMEX, Inc.,

(“CEMEX”). Wereverse. Because the parties are familiar

with the record, we recite only the facts necessary to explain

our decision.

CEMEX’s action challenges the County of Los Angeles’

(“County”) refusal to approve, pursuant to the California

Environmental Quality Act (“CEQA”) and the Surface Mining

and Reclamation Act, a sand and gravel mining project near

the City, in Soledad Canyon. The Bureau of Land

Management (“BLM”) approved the project, based on a Final

Environmental Impact Statement required by the National

Environmental Policy Act, but conditioned its approval, inter

alia, on the County’s approval of the project under state law.

The County conducted further environmental review. As

part of the process, the City exercised its CEQA right of

consultation and strongly opposed CEMEX’s plans to proceed

with gravel mining in Soledad Canyon. Ultimately, the

County refused to approve the project.

CEMEX brought an action challenging the County’s

refusal to approve the project. CEMEX alleged, among other

things, that the County abused the local environmental review

process and that such local processes are preempted by federal

law. CEMEX also makes several allegations regarding the

City’s involvement in the County’s review process. CEMEX

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requests declaratory judgment finding that federal law

preempts the County’s review and allowing the mining

operation to begin immediately. In the alternative, CEMEX

asks for a judgment declaring that the County must issue a

permit and all attendant approvals so that CEMEX could

begin mining. Twice the City moved to intervene in the action

as a defendant. The district court denied both the original and

_ the renewed motion.

ANALYSIS

A. The City’s Right of Consultation Under

CEQA is a Legally Protected Interest

Justifying Intervention.

The district court’s order denying intervention as a matter

of right is subject to immediate de novo review by this court.

Stringfellow v. Concerned Neighbors In Action, 480 U.S. 370,

375-76, 107 S.Ct. 1177, 94 L.Ed.2d 389 (1987); Arakaki v.

Cayetano, 324 F.3d 1078, 1082 (9th Cir.2003). Under

Federal Rule of Civil Procedure 24(a), intervention

shall be permitted ... when the applicant

claims an interest relating to the property

or transaction which is the subject of the

action and the applicant is so situated that

the disposition of the action may as a

practical matter impair or impede the

applicant’s ability to protect that interest,

unless the applicant’s interest is adequately

represented by existing parties.

This court applies a four-part test to determine whether

intervention of right is appropriate: (1) the application must

be timely; (2) the applicant must have a “significantly

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protectable” interest relating to the property or transaction

that is the subject of the action; (3) the applicant must be so

situated that disposition of the action may, as a practical

matter, impair the applicant’s ability to protect that interest;

and (4) the existing parties will not adequately represent the

applicant’s interest. Southwest Ctr. for Biological Diversity

v. Berg, 268 F.3d 810, 817-18 (9th Cir.2001). This four-part

test is construed liberally in favor of applicants for intervention

and guided by practical considerations rather than technical

distinctions. Jd. at 818.

1. The City’s motion was timely.

CEMEX does not dispute that the City’s motion was

timely.

2. The City has a “significantly

protectable”’ interest relating to

the subject of the action.

The district court denied intervention because it found that

the City had not demonstrated a “significant legally

protectable interest” in the subject matter of the action. To

demonstrate a legally protectable interest, the City must show

that: (a) “the interest asserted is protectable under some law”;

and (b) “that there is a relationship between the legally

protected interest and the claims at issue.” Berg, 268 F.3d at

818.

The City’s strongest argument demonstrating a legally

protectable interest concerns its right of consultation under

CEQA. Contrary to the district court’s holding and

CEMEX’s arguments, the City has shown that: (a) its interest

in the right of consultation is protected under CEQA; and (b)

that this interest is directly related to CEMEX’s action.

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a. The City has a legally protectable right

of consultation.

The BLM issued a Record of Decision requiring CEMEX

to comply with CEQA. CEQA confers upon the City a right

to consultation with the County, the local lead agency in this

case:

{[E]very local lead agency shall consult

with, and obtain comments from, each

responsible agency, any public agency that

has jurisdiction by law with respect to the

project, and any city or county that

borders on a city or county within which

the project is located...

Cal. Pub. Res.Code § 21153(a). In this case, the City obtains

its right of consultation under CEQA because it borders on the

County in which the project is located. Contrary to the district

court’s characterization, this right to consultation is not

merely a generalized interest in environmental issues. See

Northwest Forest Res. Council v. Glickman, 82 F.3d 825,

837-38 (9th Cir.1996); Westlands Water Dist. v. United

States, 700 F.2d 561, 563. (9th Cir.1983). Rather, the right

of consultation is granted and guaranteed hy statute.

b. The City's right of consultation relates to

the subject matter of the action.

The subject matter of the action is contested by the parties.

The district court characterized the action as one where the

underlying issues relates primarily to “whether the County has

abused its administrative process and whether that process has

become too cumbersome or has been used as a vehicle to

delay or frustrate the intent of federal law and federal

process.” Even if this is true, the practical effect of a

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disposition of the action may impair the City’s ability to

protect its right to consultation.

The “process,” which CEMEX alleges was abused and

employed despite federal preemption, includes the process

outlined by CEQA under which the City is granted the right to

consult with the County. As the City highlights, CEMEX’s

complaint contains several references to actions taken by the

City as it consulted with the County. Thus, the City’s right

of consultation under CEQA is directly related to CEMEX’s

action challenging the County’s alleged abuse of process.

CEMEX argues that federal preemption prevents the City

from having a protectable interest that would allow it to

intervene in the action. This argument begs the question.

Whether federal law preempts the County’s application of

CEQA or not is a subject of the action. The City has a

protectable interest in upholding the County’s application of

CEQA against CEMEX’s allegations of abuse of process and

federal preemption.

3. Disposition of the Action May Impair

the City’s Ability to Protect its Right to

Consultation.

It is the practical effect of the potential dispositions that

determines whether an applicant’s interest would be impaired.

See United States v. City of Los Angeles, 288 F.3d 391, 399

(9th Cir.2002). Regardless of the technical description of

CEMEX’s action, granting the relief requested by CEMEX

would vitiate the City’s rights to consultation by preempting

any local review and allowing the gravel mining to proceed

immediately despite the County’s refusal to approve the

project.

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4. The County Will Not Adequately

Represent the City’s Interest.

CEMEX argues that the County will adequately represent

the City’s interest because the City and the County both

oppose CEMEX’s gravel mining operation. However, in

determining the adequacy of representation, this court must

“consider whether the interest of [the County] is such that it

will undoubtedly make all the [City’s] arguments; whether the

[County] is capable and willing to make such arguments; and

whether the [City] would offer any necessary elements to the

proceedings that [the County] would neglect.” Forest

Conservation Council v. United States Forest Serv., 66 F.3d

1489, 1498-99 (9th Cir.1995) (citations omitted).

Although the County and the City agreed that CEMEX

should not be allowed to begin its gravel mining operation, the

County will not raise all of the arguments the City would raise.

The City does not believe that CEQA is preempted in any way

by federal law in this case. On the other hand, the County has

taken a more limited position. Additionally, the City has

interests in the environmental review process independent of

the County’s their interests may diverge. Thus, the County

does not adequately represent the City for the purposes of

preventing the City from intervening as a matter of right.

B. The District Court Improperly Engaged

In Issue Reduction.

The district court acknowledged that the complaint

contained allegations regarding both abuse of process and

federal preemption, but inappropriately claimed that the case

“4s not about the applicability of environmental laws.” The

district court is mistaken; the question of federal preemption

necessarily concerns the applicability of environmental laws.

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CEMEX’s prayer for relief clearly states that it wishes to

conduct its gravel mining operation without impediment from

state environmental laws. The district court’s focus on abuse

of process and away from the application of environmental

laws is not only mistaken, but also impermissible. City of Los

Angeles, 288 F.3d at 399 (holding that “the district court is

not free to consider the potential for issue reduction when

determining whether a putative intervener has a protectable

interest in the merits of the action.’’)

Regardless of the impermissible issue reduction, the

district court incorrectly emphasized the technical distinction

between procedure and substance. Even if the issues were as

limited as abuse of process, the City would still have a right to

intervene in the action because the practical effect of granting

the relief requested by CEMEX would vitiate the City’s right

to consultation under CEQA.

CONCLUSION

The City has demonstrated that it has met the four-part

test for intervention of right. Additionally, the district court

impermissibly engaged in issue reduction. Even if this court

agreed with the way the district court characterized the

underlying claims in the action, the City still has the right to

intervene. We therefore reverse the district court’s order and

hold that the City is entitled to intervention as a matter of right

under the Federal Rules of Civil Procedure, Rule 24(a).

We note that the District Court may move forward with a

consent decree between CEMEX and the County. See City

of Los Angeles, 288 F.3d at 405. In City of Los Angeles, we

held that “although this appeal involves intervention decisions

made at the onset of the case, our holding [reversing the denial

of permissive intervention and intervention of right and

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remanding] does not require the district court to turn back the

clock or rescind the consent decree.” 288 F.3d at 404-5. As

in City of Los Angeles, “our holding does not require the

district court to turn back the clock.” 288 F.3d at 404.

Rather, the City shall be allowed to intervene as of the date of

this disposition, and to be treated as an intervenor party from

that date forward. Jd. Thus, the City shall be entitled to be

heard concerning the court’s approval of any consent decree

proposed between the original parties, and to appeal the

approval of any such decree, but shall not be entitled to

reopen any issues already decided in this case.

REVERSED.

FERNANDEZ, Circuit Judge, dissenting.

I respectfully dissent because, even if Santa Clarita does

have a protectable interest in the subject of this action, it

simply has not shown that the County will not protect that

interest. Indeed, the County has every reason to defend its

actions regarding the conditions that it imposed on the Cemex

permit, its processes in deciding so to do, and its legitimate

authority.

FN1. The best Santa Clarita can do is to point to a right to

consult with the lead agency-the County-with respect to the

environmental report. See Cal. Pub. Res. Code § 21153. It

did consult. The issues in this case deal with whether the

County had the power to issue the final determination it did,

and whether it perverted, and will pervert, the powers that it

does have. Those are far from Santa Clarita’s claimed right

of consultation.

Openhanded as we may be, Santa Clarita still has to show

that the representation of its asserted interest may be

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inadequate. See N.W. Forest Resource Council v. Glickman,

82 F.3d 825, 838 (9th Cir.1996); Forest Conservation

Council v. United States Forest Serv., 66 F.3d 1489, 1498-99

(9th Cir.1995). It has not done so. It has not shown that

any of its claims that are truly relevant to this action will be

unrepresented. Mere differences about the strategy to be

used in fending off Cemex’s attacks are not enough. See

N.W. Forest Resource, 82 F.3d at 838. Indeed, there is no

reason to believe that Santa Clarita will have a greater interest

than the County in protecting the latter’s right to issue, or

deny, permits. Of course, Cemex claims that it does not need

any permits from the County, and that if it does, those must be

issued forthwith, cannot impose requirements beyond those

consistent with federal requirements, must not seek to impose

even further delays and requirements pursuant to California

law, or otherwise, and may only impose reasonable environ-

mental conditions. Certainly, says Cemex, the County cannot

deny a permit. All of those go to the heart of the County’s

own power, and are essentially remote from Santa Clarita’s

right to consult. There is no reason to believe that the County

will not exert all reasonable efforts to protect its legitimate

authority.

Santa Clarita’s intervention is not required and, if past

history is any indication, it is likely to generate a great deal of

heat, very little light, and consist of nothing less than a

pertinacious effort to stop Cemex’s proposed project at all

costs.

Thus, my dissent.