The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge
ORDER GRANTING MOUNT SOLEDAD MEMORIAL ASSOCIATION'S MOTION TO INTERVENE; AND ORDER DENYING MOTION BY SAN DIEGANS FOR THE MT. SOLEDAD MEMORIAL TO INTERVENE; AND ORDER GRANTING LEAVE TO PROCEED AS AMICI CURIAE [DOCKET NOS. 314, 315, 316, 317.]
Two motions to intervene are pending before the Court: one brought by the Mount Soledad Memorial Association (MSMA) (Docket no. 315); and a second brought by the organization San Diegans for the Mt. Soledad National War Memorial ("San Diegans for the Memorial") (Docket no. 316). Originally two members of Congress, Reps. Brian Bilbray and Duncan Hunter,*fn1 filed a motion to intervene (Docket no. 314), but they then withdrew their request to intervene and sought only leave to appear as amici curiae. (Docket no. 317.) The MSMA's motion primarily seeks to clarify that it is already a Defendant, but in the alternative seeks to intervene. The United States consents to the participation of all three as amici, does not oppose the MSMA's permissive intervention, but does oppose intervention by San Diegans for the Memorial.
The Court held a hearing on the motions on October 19, 2012 and announced its tentative rulings. This written order memorializes and supplements the Court's findings and orders at the hearing.
Under Fed. R. Civ. P. 24(a)(2), a person may intervene who "claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest." This is referred to as intervention of right. The Court construes this provision liberally in favor of potential intervenors, focusing on practical considerations rather than technical distinctions. Southwest Ctr. for Biological Diversity v. Berg, 268 F.3d 810, 817 (9th Cir. 2001). A person or entity seeking to intervene by right must meet four requirements:
(1) the applicant must timely move to intervene; (2) the applicant must have a significantly protectable interest relating to the property or transaction that is the subject of the action; (3) the applicant must be situated such that the disposition of the action may impair or impede the party's ability to protect that interest; and (4) the applicant's interest must not be adequately represented by existing parties.
Arakaki v. Cayetano, 324 F.3d 1078, 1083 (9th Cir. 2003). The proposed intervenor bears the burden of showing that all four requirements are met. United States v. Alisal Water Corp., 370 F.3d 915, 919 (9th Cir. 2004).
Rule 24(b)(1) provides for permissive intervention. A prospective intervenor under this section must show: "(1) it shares a common question of law or fact with the main action; (2) its motion is timely; and (3) the court has an independent basis for jurisdiction over the applicant's claims." Donnelly v. Glickman, 159 F.3d 405, 411 (9th Cir. 1998). Discussion
The Court first notes that the motions to intervene were filed promptly after the proposed intervenors learned that the MSMA's standing was being questioned, and that the government was pursuing or considering settlement options.
Timeliness is measured by reference to "(1) the stage of the proceeding at which an applicant seeks to intervene; (2) the prejudice to other parties; and (3) the reason for the length of the delay." United States v. Carpenter, 298 F.3d 1122, 1125 (9th Cir. 2002) (quoting County of Orange v. Air California, 799 F.2d 535, 537 (9th Cir. 1986)). There is a legal presumption that the government's representation in a matter of shared interest will be adequate, see id., and initially both the MSMA and San Diegans for the Memorial assumed this to be so. It was only later, after an appeal was filed, that both organizations began to believe the government representation might not be adequate. Those reasons are discussed below. Under circumstances such as these, a motion to intervene is timely even if filed later in the litigation, provided the proposed intervenors file their motion in a timely manner once on notice the government representation is inadequate. Id. at 1125--26. Here, the Court concludes the motions were timely filed.
It also bears mentioning that neither the proposed intervenors nor the Court can adopt a wait-and-see attitude. A later motion by either the MSMA or San Diegans for the Memorial seeking leave to intervene would very likely be untimely.
The MSMA contends it was initially named as a Defendant, and points out that it filed an answer to the First Amended Complaint. It asks the Court to clarify its status. Although paragraph 9 of the First Amended Complaint did characterize the MSMA as a Defendant, the caption of the complaint named the MSMA only as a "Real Party in Interest." Then, when the MSMA attempted to file briefing on appeal, Plaintiff sought to block their filing. The Ninth Circuit rejected Plaintiff's effort, and the MSMA ultimately participated as a party to the appeal. These past conflicts leave the MSMA's status in some doubt.
The MSMA is a secular organization formed in 1952, and was responsible for building the memorial and making changes to how it now exists. It has assumed responsibility for administering and maintaining the memorial, both while the property was owned by the City of San Diego, and also under federal ownership. The MSMA is differently situated than San Diegans for the Memorial because the statute creating the memorial recognizes the MSMA's unique place and specifically provides a role for it to maintain the memorial. See Pub. L. 109-272, § 2(c) ("Upon acquisition of the Mt. Soledad Veterans Memorial by the United States, the Secretary of Defense shall manage the property and shall enter into a memorandum of understanding with the Mt. Soledad Memorial Association for the continued maintenance of the Mt. Soledad Veterans Memorial by the ...