San Francisco Baykeeper v. U.S. Environmental Protection Agency

Background

The Environmental Protection Agency issued a March 2019 jurisdictional determination concerning waters in the Redwood City Salt Ponds. The agency determined that the contested area did not contain waters of the United States under the Clean Water Act and therefore was not entitled to the Act’s protections. That determination differed from a 2016 draft prepared by the agency’s Region 9 office, which concluded that most of the area was covered by the Act.

Environmental organizations filed one action, and the State of California filed another, challenging the March 2019 determination. Both complaints sought to set aside and declare unlawful the agency’s decision. The two actions involved the same defendants, agency determination, requested remedy, and administrative record.

Redwood City Plant Site, LLC, also known as DMB Redwood City Saltworks, had requested the jurisdictional determination and moved to intervene in both actions. The plaintiffs ultimately filed statements of non-opposition to intervention.

Consolidation

Under Federal Rule of Civil Procedure 42(a), a court may consolidate actions involving a common question of law or fact. The court concluded that the efficiency benefits of consolidation outweighed any inconvenience, delay, or prejudice. It therefore consolidated the California and Baykeeper actions.

Intervention

Under Rule 24(a), intervention as of right requires a timely motion, a significant protectable interest related to the subject of the action, a possibility that the action could impair that interest, and a showing that the existing parties may not adequately represent it.

The court found that Saltworks satisfied all four requirements. Saltworks had initiated the jurisdictional-determination process, and the scope of Clean Water Act jurisdiction affected its interest in exploring future development options. The court also stated that Cargill had ownership interests in the salt ponds that could be affected by the litigation and that Saltworks’ representation of those interests would promote efficient resolution.

The court found the motion timely because Saltworks sought intervention before the initial case-management conference and no party objected. It also found that the government’s broader environmental, administrative, public, and other responsibilities differed from Saltworks’ specific interests in its property rights and investments. Because Saltworks qualified for intervention as of right, the court did not analyze permissive intervention under Rule 24(b).

Disposition

The actions were CONSOLIDATED, and Saltworks’ motions to intervene were GRANTED. The court ordered that future filings use the caption in the order and be filed only in Case No. 19-05941. Case No. 19-05943 was to receive no further filings, and the January 29 hearings on the intervention motions were VACATED. The order did not decide whether the EPA’s Clean Water Act jurisdictional determination was lawful.