ELR Citation: ELR 20845
No(s). 82-4314 (D.N.J. Aug 5, 1983)

In a Federal Water Pollution Control Act (FWPCA) action to halt ocean dumping of toxic refuse, the court holds that the state of Delaware has failed to demonstrate that it has sufficient interest in the case to justify intervention of right or by permission under the Federal Rule of Civil Procedure (FRCP) 24. The court first holds that to qualify as a "citizen" within the meaning of FWPCA §505(b)(1)(B), dealing with the right to intervene in an action, the state must show, under §505(g), that it has sufficient interest in the suit. However, since Delaware is not presently harmed by dumping into the Atlantic Ocean's New York Bight area, the court holds that it lacks the requisite interest in the action to be considered a citizen and cannot intervene as a matter of right under FRCP 24(a)(1).

The court holds that the remoteness of Delaware's interest in the action is also dispositive of its motion to intervene under FRCP 24(a)(2), which provides for intervention as a matter of right when the applicant has a sufficient interest in the matter that would be affected by the disposition, when existing parties to the suit cannot adequately represent that interest, and when the application is timely.

On the issue of permissive intervention, the court holds that motions for permissive intervention under FRCP 24(b)(2) lie within its sound discretion. The court is unconvinced that allowing Delaware to intervene would be in the best interest of all parties, reasoning that the resulting delay and increased potential for environmental harm should not be tolerated to permit a remotely interested plaintiff to join an already complex dispute. The court also notes that Delaware will have ample opportunity to contest the designation of a dump site off its coast during subsequent administrative hearings, and perhaps in an independent legal action. Since Delaware has no present interest in the issues before the court, and since its presence as plaintiff is nonessential to an equitable resolution of the claims, and would only delay the original action, the court declines to allow Delaware to intervene in the case by right or by permission under FRCP 24.

[A related, subsequent opinion in the case appears at 14 ELR 20736.]

Counsel for Plaintiff
Michael Zaretsky, Ellen Horowitz
Fischer, Kagan, Ascione & Zaretsky
1373 Broad St., Clifton NJ 07013
(201) 779-6300

Counsel for Defendants
Charles Carella, Richard E. Kummer, Robert E. Rochford
Carella, Byme, Bain & Gilfillan
Gateway 1, Suite 2404, Newark NJ 07601
(201) 994-1700

Stephen J. Moses
Moses & Toskos
1 Essex St., Hackensack NJ 07601
(201) 343-6612

John A. Hoffman, Milton B. Conford
Wilentz, Goldman & Spitzer
900 Rt. 9, P.O. Box 10, Woodbridge NJ 07095
(201) 636-8000

George J. Minish
Minish & Williams
614 Eagle Rock Ave., P.O. Box 236, West Orange NJ 07052
(201) 736-9622

Robert L. Sheldon
3 E. Westfield Ave., Roselle Park NJ 07204
(201) 245-5800

Counsel for Intervenor
Charles M. Oberly III, Attorney General; Bartholomew J. Dalton, Chief Deputy Attorney General
820 N. French St., 8th Floor, Wilmington DE 19801
(302) 571-3838