Lead Opinion
This case is before the Court upon a petition for writ of mandamus filed by the petitioners, Bobby J. Ball, Shirley Ball and the Estate of Frances J. Ball, against the respondents, the Honorable John L. Cummings, Judge of the Circuit Court of Cabell County; Barbara Taylor, Chief, Office of Water Resources, Division of Environmental Protection; Culloden Public Service District; and West Virginia — American Water Company. The petitioners seek a writ ordering Judge Cummings to permit the petitioners to intervene in an enforcement action brought by the Division of Environmental Protection, pursuant to the West Virginia Water Pollution Control Act, W.Va.Code §§ 22-11-1 to 22-11-28, against the Culloden Public Service District and the West Virginia — American Water Company. We issued a rule to show cause and now grant the writ of mandamus.
FACTS
The petitioners, Bobby J. Ball, Shirley Ball and the Estate of Francis J. Ball
W.Va.Code § 22-11-8 (1994) of the WPCA prohibits the discharge of pollutants except in compliance with that code section and, inter alia, a National Pollutant Discharge Elimination System (“NPDES”) permit issued pursuant to W.Va.Code § 22-11-4 (1994).
On September 15, 1998, the petitioners gave notice to state and federal authorities, Culloden PSD and WV-AWC, pursuant to the federal Water Pollution Prevention and Control Act, 33 U.S.C. § 1365(b) (1994) (“WPPCA”), that they were instituting a civil suit under the WPPCA against Culloden PSD and WV-AWC in 60 days if state authorities did not commence a civil action to require compliance with state and federal water pollution standards.
On January 7, 1999, the petitioners filed a motion to intervene in the DEP’s enforcement action pursuant to Rule 24 of the West Virginia Rules of Civil Procedure. In the intervenor’s complaint, the petitioners stated causes of action for trespass, nuisance, violations of the federal WPPCA, and the state WPCA as a result of alleged damage to their land caused by discharges from the wastewa-ter treatment facility. The petitioners asked for declaratory relief; temporary and permanent injunctive relief; compensatory and punitive damages; and costs.
By order of March 22, 1999, the Circuit Court of Cabell County, Judge Cummings presiding, denied the petitioner’s motion to intervene. Judge Cummings essentially held that denying intervention does not impair the remedies available to the petitioners; the petitioners’ interest in seeking injunctive relief will be satisfied by the DEP action; and the petitioners’ intervention would alter the scope of the trial and impede the discovery process.
II.
STANDARD OF REVIEW
It is well-established that,
A writ of mandamus will not issue unless three elements coexist — (1) a clear legal right in the petitioner to the relief sought; (2) a legal duty on the part of respondent to do the thing which the petitioner seeks to compel; and (3) the absence of another adequate remedy.
Syllabus Point 2, State ex rel. Kucera v. City of Wheeling,
III.
DISCUSSION
The petitioners hinge their entire argument on mandatory intervention under W.Va. Rule of Civil Procedure 24(a)(2).
West Virginia Rule of Civil Procedure 24(a)(2) states:
Upon timely application anyone shall be permitted to intervene in an action: ... (2) 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.
Thus, West Virginia Rule of Civil Procedure 24(a)(2) allows intervention of right in an action if an applicant meets four conditions: (1) the application must be timely; (2) the applicant must claim an interest relating to the property or transaction which is the subject of the action; (3) disposition of the action may, as a practical matter, impair or impede the applicant’s ability to protect that interest; and (4) the applicant must show that the interest will not be adequately represented by existing parties. We must now determine
We note at the outset that while this Court has considered whether a motion to intervene is timely under Rule 24(a)(2), we have not previously addressed the standards to be used in determining whether the remaining conditions listed above are present. We observe, however, that West Virginia Rule of Civil Procedure 24(a)(2) and Federal Rule of Civil Procedure 24(a)(2), upon which it is based, are substantially similar. Accordingly, “we follow our usual practice of giving substantial weight to federal eases in determining the meaning and scope of our rules of civil procedure.” Lawyer Disciplinary Bd. v. Cunningham,
There is no dispute that the petitioners’ application to intervene in the DEP action was timely. The DEP action was filed on November 17, 1998, and the petitioners’ motion to intervene was filed on January 7, 1999. This Court has stated that “[w]hile Rule 24 of the West Virginia Rules of Civil Procedure provides for the intervention of parties upon a timely application, the timeliness of any intervention is a matter of discretion with the trial court.” Syllabus Point 10, Pioneer Co. v. Hutchinson,
The second condition that the petitioners must meet under Rule 24(a)(2) is an interest relating to the property which is the subject of the DEP’s enforcement action. The petitioners argue that they have demonstrated an intei’est requiring protection which will be affected by the outcome of the DEP action. According to the petitioners, this interest is the speedy enjoinment of the discharge of any further pollution onto their land. Culloden PSD and WV-AWC do not dispute the petitioners’ claim of an adequate interest in the DEP action. We agree that the petitioners have demonstrated an adequate interest under Rule 24(a)(2). However, because this Court has not previously addressed the issue of what constitutes an adequate interest to justify intervention of right under Rule 24(a)(2), we deem it helpful to briefly survey the relevant federal law.
One is hard-pressed to discover a bright line rule adopted by a majority of federal courts on this issue. See 59 Am.Jur.2d, Parties § 134 (1987) (noting “the absence of any concise yet comprehensive definition of what constitutes a litigable interest for the purposes of intervention”); 7C Charles Alan Wright, Arthur R. Miller & Mary K. Kane; Federal Practice and Procedure, § 1908, p. 19 (1999 Supp.) (“There is not as yet any clear definition of the nature of the ‘interest relating to the property or transaction which is the subject of the action’ that is required for intervention of right”); Conservation Law Foundation v. Mosbacher,
It is generally agreed that an applicant’s interest under a Rule 24(a)(2) motion to intervene must be direct and substantial or legally protectable. One commentator has stated:
[I]t has been declared that the interest in the subject matter of the litigation must be a substantial interest, a legal interest, or an interest known and protected by the law. “Interest” means a concern which is more than mere curiosity, or academic or sentimental desire. One interested in an action is one who is interested in the outcome or result thereof because he or she has a legal right which will be directly affected thereby or a legal liability which will be directly enlarged or diminished by the judgment or decree therein.
Obviously, such an approach depends heavily upon the specific facts of the case. The court in Kleissler v. U.S. Forest Service,
Rule 24 demands flexibility when dealing with the myriad situations in which claims for intervention arise. Nonetheless, the polestar for evaluating a claim for intervention is always whether the proposed intervenor’s interest is direct or remote. Due regard for efficient conduct of the litigation requires that intervenors should have an interest that is specific to them, is capable of definition, and will be directly affected in a substantially concrete fashion by the relief sought. The interest may not be remote or attenuated. The facts assume overwhelming importance in each decision.
We believe such a flexible and fact-specific analysis is in accord with this Court’s traditional application of the rules of practice and procedure “to promote the ends of justiee[,]” State v. Greene,
Applying these principles to the instant case, we find that the petitioners claim an adequate interest for intervention of right. The DEP enforcement action was brought to seék injunctive relief and the imposition of civil penalties for discharges of pollutants into the Indian Fork which traverses the petitioners’ property. The petitioners claim that the discharges of these pollutants have impaired the use, enjoyment and economic value of their land. Absent the DEP enforcement action, the petitioners could have filed an action under the federal WPPCA or an injunction action to stop the discharges of pollutants into the Indian Fork. Therefore, the interest articulated by the petitioners is capable of definition, protectable under law,
The next condition for intervention under Rule 24(a)(2) is that the petitioners are so situated that the disposition of the DEP’s enforcement action may, as a practical matter, impair or impede their ability to protect their interest. Culloden PSD and WV-AWC reason that the petitioners’ primary interest is money, and the DEP’s action in no way prevents the petitioners from bringing a common law action against the defendants for damages. The petitioners, as noted above, argue that their primary interest is the immediate enjoinment of the discharge of pollution onto their land. The petitioners aver that the DEP’s action frustrated the filing of their own enforcement action under the federal WPPCA against Culloden and WV-AWC. They also contend that the DEP may dispose of its action by agreeing to an order extending indefinitely the deadline for abatement activities.
This Court has not addressed the issue of when disposition of an action impedes or impairs an applicant’s ability to protect his or her interest under Rule 24(a)(2). One commentator has stated that under federal Rule 24(a)(2):
It is generally agreed that in determining whether disposition of the action will impede or impair the applicant’s ability to protect his interest the question must be put in practical terms rather than in legal terms. The central purpose of the 1966 amendment [of Federal Rule of Civil Procedure 24] was to allow intervention by those who might be practically disadvantaged by 'the disposition of the aetion[.]
7C Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure § 1908, p. 301 (1986) (footnotes omitted). Further it has been said that “[t]he issue of practical impairment is necessarily one of degree and requires a consideration of the competing interests of the plaintiff and defendant in conducting and concluding their lawsuit without undue complication, and of the public in the speedy and economical resolution of legal controversies.” 69 Am.Jur.2d Parties § 138, p. 603 (footnote omitted). We find these considerations useful in determining eases such as the instant one. Therefore, we hold that in determining whether a proposed intervenor of right under West Virginia Rule of Civil Procedure 24(a)(2) is so situated that the disposition of the action may impair or impede his or her ability to protect that interest, courts must first determine whether the proposed intervenor may be 'practically disadvantaged by the disposition of the action. Courts then must weigh the degree of practical disadvantage against the interests of the plaintiff and defendant in conducting and concluding their action without undue complication and delay, and the general interest of the public in the efficient resolution of legal actions.
In applying this standard to the facts of the instant ease, we agree with the petitioners that the disposition of the DEP action may impede their ability to protect their interest. While the DEP’s action does not impair the petitioners’ ability to bring a common law action for damage to their land, it does prevent them from bringing a federal WPPCA action. The federal Water Pollution Prevention and Control Act, 33 U.S.C. § 1365(a)(1), provides that “any citizen may commence a civil action on his own behalf — (1) against any person ... who is alleged to be in violation of (A) an effluent standard or limitation under this chapter or (B) an order issued by ... a State with respect to such a standard or limitation[.]” The petitioners were preparing to bring such an action, by the issuance of a 60-day notice required by 33 U.S.C. § 1365(b)(1), when the DEP filed its own action. According to 33 U.S.C. § 1365(b)(1)(B) no citizen action may be commenced under the federal WPPCA “if the ... State has commenced and is diligently
Further, the DEP’s disposition of its enforcement action may impair the petitioners’ ability to protect their interest in the immediate enjoinment of the discharge of pollution onto their property. As acknowledged by WV-AWC, the DEP action will likely be disposed of by a consent order between the DEP and the defendants. This order may enact a longer deadline for the construction of a new waste water treatment facility or other abatement activities than the petitioners are willing to accept. Also, we agree with the petitioners that an opportunity for comment on any proposed consent order, while usually effective to address the concerns of the public at large, is a poor substitute for actual participation by parties with the immediate interests of the petitioners. In addition, even if the provisions of the consent decree were reconsidered in light of the petitioners’ comments, this would further delay an ultimate resolution of the DEP action to the disadvantage of the petitioners for whom time is of the essence. Accordingly, we find that disposition of the DEP action may impair the petitioners’ ability to protect their interest in seeking immediate injunctive relief.
The defendants argue, however, and Judge Cummings found, that to add the petitioners, who are also seeking monetary damages, to the DEP action would change the burden of proof and complicate the issues to be tried. We disagree. The petitioners desire to intervene in the DEP action to ensure that their interest in the timely abatement of the discharge of pollutants into the Indian Fork will be protected. It appears that the issues of how and when this abatement will be affected are central to the resolution of the DEP action. Therefore, the petitioners can participate in the resolution of these issues. On the other hand, the issues involved in the petitioners’ action for monetary damages can be bifurcated.
This brings us to the decisive issue of whether the petitioners’ interest is adequately represented by the DEP. The defendants aver that federal courts have ruled that when a proposed intervenor’s interests are being adequately represented by a governmental entity which is a party to the action, intervention should be denied. For support, the defendants cite State of Texas v. United States Dept. of Energy,
The Ball’s interest in seeking injunctive relief will be satisfied by the DEP. As noted in the West Virginia-American Water Company’s Opposition to Intervention memorandum, the DEP is required to allow public comment on the proposed consent order and the Court could consider the Ball’s comments at that time. There is no legitimate reason why the DEP would not represent the best interest of private citizens in this matter.
We disagree.
Again, our survey of applicable federal cases reveals that the law in this area is not well-settled. First, courts are split concerning who has the burden of showing adequacy or inadequacy of representation, the party seeking intervention or the party opposing it. See Bates v. Jones,
Courts also lack agreement concerning the proper standard to be used in determining the adequacy of representation. One commentator has opined that “courts have developed a perplexing variety of tests, standards, and analytical frameworks. This has lead at least one court to note that there is some doubt as to the correct standard applicable in determining adequacy of representation.” 26 Fed.Proc. L.Ed. Parties § 59:302 (footnote omitted). A review of this perplexing variety of tests would be of little utility here. Instead, it is sufficient to recognize that generally courts compare the interests asserted by the proposed intervenor with the interests of the existing party. See 59 Am. Jur.2d Parties § 141. If the proposed intervenor’s interest is not represented by the existing party, or the existing party’s interests are adverse to those of the proposed intervenor, intervention should be granted. If the interests of the proposed intervenor and the existing party are similar, “a discriminating judgment is required on the circumstances of the particular case, but [the proposed intervenor] ordinarily should be allowed to intervene unless it is clear that the [existing] party will provide adequate representation for the absentee.” 7C Charles A. Wright, Arthur R. Miller & Mary K. Kanei, Federal Practice and Procedure § 1909, p. 319 (footnote omitted). See also 26 Fed. Proc. L.Ed. Parties § 59:303. Finally, if the interests are identical, intervention should be denied unless there is a compelling showing as to why the existing representation is inadequate. See 26 Fed.Proc. L.Ed. Parties § 59:303. A compelling showing may include, but is not limited to, adversity of interest, the representative’s collusion with an opposing party, or nonfeasance by the representative. 26 Fed.Proc. L.Ed. Parties § 59:304.
A case analogous to the instant one in which a specialized interest was shown is United States v. Reserve Mining Company,
While there may be a similarity of interests asserted between the environmental groups and the United States, the similarity does not necessarily mean that there will be adequate representation of those interests by the United States. Assuming that the end result which the United States is seeking is an abatement of pollution of Lake Superior by Reserve Mining Company, the Court must assume that there is more than one method of achieving that abatement. If the environmental groups maintain an interest in a specific form of abatement, which they feel will better protect their asserted interests, the Court should be willing to hear such evidence, if the best possible judgment is to be rendered....
In addition, there may be a difference in approach between the environmental groups and the United States. The United States is charged with representing a broad public interest, and, as the Government of the people, must represent varying interest, industry as well as individuals. The Court should at least hear and make of record the views of those groups seeking to represent a more narrow interest.
United States v. Reserve Mining Company,
We now apply this rule to the instant set of facts. The petitioners’ interest is similar to the DEP’s in that both seek an ultimate termination of unlawful discharges of pollutants into the Indian Fork. The DEP’s interest, however is broad and extends to representing the public, including the entire
IV.
CONCLUSION
In conclusion, we find that the petitioners claim an interest relating to the property or transaction which is the subject of the DEP action; the petitioners are so situated that the disposition of the DEP action may as. a practical matter impair their ability to protect that interest; and the petitioners’ interest is not adequately represented by the DEP. Therefore, the petitioners meet all the conditions for intervention of right under Rule 24(a)(2) of the West Virginia Rules of Civil Procedure. Accordingly, we find that the • petitioners have a clear legal right to intervene, and Judge Cummings has a legal duty to permit the petitioners to intervene in the DEP action. As noted above, another adequate remedy is not available to the petitioners. For these reasons, we grant the writ of mandamus prayed for by the petitioners.
Writ granted.
Notes
. According to the petitioners, Francis J. Ball died after the filing of the petitioners’ motion to intervene. At her death, the tract of land in which she had retained a life estate interest vested in its entirety with her son, Bobby J. Ball.
. The federal Water Pollution Prevention And Control Act authorizes the Administrator of the United States Environmental Protection Agency to approve a state national pollutant discharge elimination system program (“NPDES”) which implements and administers the federal NPDES program. See 33 U.S.C. § 1342(b) (1994). According to the state Department of Environmental Protection, West Virginia has been authorized to implement and administer the NPDES program since 1982.
. According to W.Va.Code § 22-11-3(9) (1994), " '[e]ffluent limitation’ means any restriction established on quantities, rates and concentrations of chemical, physical, biological and other constituents which are discharged into the waters of this state[.]”
. The WPPCA provides for citizen suits to enforce compliance with that act. According to 33 U.S.C. § 1365(a) (1994), in relevant part:
[A]ny citizen may commence a civil action on his own behalf-
(1) against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of (A) an effluent standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation, or
(2) against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator. According to 33 U.S.C. § 1365(b)(1) (1994), in
part, no such action may be commenced,
(A) prior to sixty days after the plaintiff has given notice of the alleged violation (i) to the Administrator, (ii) to the State in which the alleged violation occurs, and (iii) to any alleged violator of the standard, limitation, or order, or
(B) if the Administrator or State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States, or a State to require compliance with the standard, limitation, or order, but in any such action in a court of the United States any citizen may intervene as a matter of right.
. West Virginia Rule of Civil Procedure 24(a)(1) allows for intervention of right "when a statute of this State confers an unconditional right to intervene^]” The petitioners concede that the state Water Pollution Control Act does not confer such a right.
. See West Virginia Rule of Civil Procedure 42(c) concerning separate trials. Also, concerning the necessity of bifurcation of issues relating to alleged injury to the petitioners’ property and requests for monetary damages, we note that W.Va.Code § 22-11-27 (1994) states in pertinent part:
An order of the director or of the board, the effect of which is to find that pollution exists, or that any person is causing pollution, or any other order, or any violation of any of the provisions of this article shall give rise to no presumptions of law or findings of fact inuring to or for the benefit of persons other than the state of West Virginia.
. The petitioners also argue that the circuit court - improperly considered delay in denying their motion to intervene inasmuch as Rule 24(a)(2) does not list delay as a factor for consideration. Because we grant the relief sought by the petitioners, we decline to discuss this issue.
Concurrence Opinion
dissenting in part and concurring in part.
(Filed Dec. 13, 2000)
I dissent, narrowly, to the Court’s holding in syllabus point six, which essentially defines “inadequate representation.” I fear that the language of this syllabus point might be a bit too limiting, and could be turned on its head to actually prevent the intervention of parties, situated similarly to the petitioners, in future cases before this Court. I do not wish to take any action that would encourage such mischief.
Otherwise I concur in the decision reached by the Court in this generally well-written opinion.