United States District Court, D. Maryland
J. MESSITTE UNITED STATES DISTRICT JUDGE
Friends of the Capital Crescent Trail, John Fitzgerald,
Esquire, and Leonard Scensny brought this case against
Defendants the U.S. Army Corps of Engineers (USACE), Col.
John Litz, and Chief Joseph Davia, alleging that Defendants
violated the Administrative Procedure Act when they granted a
permit, supposedly without meeting certain requirements of
the Clean Water Act. The Maryland Department of
Transportation Maryland Transit Administration (MTA), the
permit holder, has filed the instant Motion to Intervene.
Plaintiffs oppose, and current Defendants take no position on
the motion. Having considered the MTA's motion and
Plaintiffs' opposition, for the reasons that follow, the
Court GRANTS the motion (ECF No. 20). The
MTA may intervene as a Defendant in these proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
of the Capital Crescent Trail is a 501(c)(3) nonprofit
organization dedicated to preserving parkland, open space,
and quality of life in Montgomery County. John Fitzgerald is
a semi-retired public interest attorney and consultant whose
work focuses on environmental conservation. His home fronts
on the Capital Crescent Trail. Leonard Scensny is a resident
of Montgomery County who has been a regular user of Rock
Creek Park and the Capital Crescent Trail as a bicyclist and
pedestrian for the past 30 years.
is an agency of the United States with jurisdiction over the
waters of the United States. Colonel John Litz is the
Commander and District Engineer of the Baltimore District of
USACE and is sued in his official capacity. Joseph DaVia is
Chief of the Maryland Section, Northern, Regulatory Branch of
the Baltimore District. He issued the Permit at issue to
proposed intervenors MTA, doing so on behalf of Col.
intervenor, the MTA, is responsible for the development,
administration, and operation of transit services throughout
seek relief under the Clean Water Act and the Administrative
Procedure Act for Defendants' alleged violation of
federal law for having issued a permit authorizing the MTA to
discharge dredged or fill material into U.S. waters in
connection with the construction of the Purple Line, a 16.2
mile light rail transit line from Bethesda to New Carrollton.
The $5.6 billion project aims to provide improved Metro
connectivity to several major activity centers in the area,
with 21 stations between New Carrolton in Prince George's
County and Bethesda in Montgomery County. The Permit,
CENAB-OP-RMN (MTA/ PURPLE LINE), No. 2016-61278-M07, was
issued on March 14, 2018, pursuant to (and in alleged
violation of) Section 404 of the Clean Water Act.
allege that Defendants issued the Permit without requiring
the MTA to meet its burden to prove by clear and convincing
evidence that an alternative with less adverse impact on the
waters of the United States was impracticable. Instead,
Defendants supposedly relied on an alternatives analysis
supplied by the MTA, allegedly without conducting an adequate
and independent review of that analysis. Plaintiffs allege
that that failure was in violation of the CWA, was arbitrary
and capricious, and an abuse of discretion.
1, 2019, after a Scheduling Order was issued but before any
dispositive motions had been filed, the MTA filed the instant
Motion to Intervene as Defendants, by right or in the
alternative with permission from the Court. Defendants do not
take a position on the Motion, and Plaintiffs oppose.
Rule of Civil Procedure 24 provides two avenues for
intervention. The first is Rule 24(a)(2)-intervention as a
matter of right. Under that rule, a district court must
permit intervention if the proposed intervenor can
demonstrate: (1) an interest in the subject matter of the
action; (2) that the protection of this interest would be
impaired because of the action; and (3) that no existing
party adequately represents the proposed intervenor's
interest. Stuart v. Huff, 706 F.3d 345, 349 (4th
Cir. 2013). “Under Rule 24(a)(2), once an intervenor
has satisfied the three criteria for mandatory intervention,
the burden of persuasion shifts such that intervention is
mandatory, ‘unless the court is persuaded that the
representation is in fact adequate.'” Maryland
Restorative Justice Initiative v. Hogan, 316 F.R.D. 106,
111 (D. Md. 2016) (quoting 7C CHARLES ALAN WRIGHT &
ARTHUR R. MILLER, FEDERAL PRACTICE & PROCEDURE §
1909, at 390 (3d ed. 2007, 2016 Supp.)).
a court may allow an applicant to intervene permissively
under Rule 24(b), considering “whether the intervention
will unduly delay or prejudice the adjudication of the
original parties' rights.” Fed.R.Civ.P. 24(b)(3).
Also, “timeliness is a ‘cardinal
consideration' of whether to permit
intervention….” Houston Gen. Ins. Co. v.
Moore, 193 F.3d 838, 839 (4th Cir. 1999). When
considering timeliness, courts consider three factors:
“first, how far the underlying suit has progressed;
second, the prejudice any resulting delay might cause the
other parties; and third, why the movant was tardy in filing
its motion.” Alt v. U.S. Envtl. Prot. Agency,
758 F.3d 588, 591 (4th Cir. 2014) (citing Gould v.
Alleco, Inc., 883 F.2d 281, 286 (4th Cir. 1989)).
Court first evaluates whether the MTA's motion should be
granted pursuant to Rule 24(b), as a ...