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Friends of Capital Crescent Trail v. United States Army Corps of Engineers

United States District Court, D. Maryland

July 18, 2019

FRIENDS OF THE CAPITAL CRESCENT TRAIL, et al., Plaintiffs,
v.
UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants

          MEMORANDUM OPINION

          PETER J. MESSITTE UNITED STATES DISTRICT JUDGE

         Plaintiffs 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.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Friends 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.

         USACE 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. Litz's predecessor.

         Proposed intervenor, the MTA, is responsible for the development, administration, and operation of transit services throughout Maryland.

         Plaintiffs 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.

         Plaintiffs 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.

         On May 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.

         II. LEGAL STANDARD

         Federal 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.)).

         Alternatively, 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)).

         III. ANALYSIS

         The Court first evaluates whether the MTA's motion should be granted pursuant to Rule 24(b), as a ...


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