Trunk v. City of San Diego, CASE NO. 06cv1597-LAB (WMc)

STEVE TRUNK, Plaintiff,

v.CITY OF SAN DIEGO, UNITED STATES OF AMERICA, ROBERT M. GATES,Secretary of Defense and DOES 1 through 100, inclusive, Defendants.

MOUNT SOLEDAD MEMORIAL ASSOCIATION, Real Parties in Interest.

JEWISH WAR VETERANS OF THE UNITED STATES OF AMERICA, INC.,

RICHARD A. SMITH, MINA SAGHEB, and JUDITH M. COPELAND, Plaintiffs,

v.LEON PANETTA, Secretary of Defense, in his official capacity, Defendant.

CASE NO. 06cv1597-LAB (WMc)

Consol. w/06cv1728-LAB (WMc

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

DATED: October 19, 2012

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,¹ 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.

Legal Standards

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

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'sunique 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 Association.") Although the MSMA was named as a Real Party in Interest and has been involved in litigation, the Court concludes it is not presently a Defendant. The only way it can be a party at this point is to intervene.

The United States attempts to minimize the MSMA's role, arguing "Congress did nothing more than direct that the government contract with the MSMA for 'maintenance.'" (Consolidated Opp'n at 9:21-23.) At the hearing, Plaintiffs argued essentially the same thing, contending that the MSMA was little more than a hired groundskeeper. At the hearing, Plaintiffs and the MSMA also disputed what the MSMA's role is in preserving the cross as part of the memorial.

The MSMA correctly points out that it has a unique role that was created, and is recognized and protected by law. A memorandum of understanding (MOU) was entered into between the Department of the Navy and the MSMA.(MSMA's Mot. to Intervene, Ex. E.) The MOU directs the MSMA to invest money and effort in maintaining, repairing, and preserving the memorial; gives the MSMA priority in using the memorial; and provides for the MSMA's continued installation of memorial plaques at the memorial. It also gives the MSMA other options not available to the general public, such as proposing capital improvements. In return, the government has agreed not to take any actions that would damage or disturb existing plaques, not to make any improvements without consulting with MSMA, and to use its best efforts to avoid any improvement projects that are inconsistent with improvement plans the MSMA has submitted to the government and which the government has approved.

The memorial plaques the MSMA is authorized to install involve yet a different kind of interest. While the MSMA does not retain a property interest in the plaques, it does have a responsibility to the families of veterans who paid substantial sums of money to have theminstalled. Members of some of those families previously filed a brief as amici with this Court (Docket no. 236), emphasizing that they memorialized their deceased relatives by plaques and memorial services held at the memorial, and that the memorial serves as a monument and place where families, friends, and comrades can remember and pay tribute to fallen war veterans. These amici argued that the cross served as a symbol of their loved ones' sacrifice and death, and that removing it would cause them a great deal of grief and dishonor the fallen service members. The MSMA's interests are aligned with the interests of veterans' families who are in this position. And the MSMA's role, recognized in the MOU, as administrator of the plaques, would be affected by a major change to the memorial's character.

The MOU, in short, provides for a division of rights and responsibilities, and gives the MSMA interests different from those of the government and even potentially inconsistent. The interests of the MSMA are not coterminous with those of the United States, and, the Court finds, the United States cannot adequately represent the interests of its partner. The MSMA's interests are legally protected because they are embodied in the statute as well as in the MOU.

At the outset of the current litigation, there was no reason to question that the United States would vigorously defend the statute preserving the memorial. The MSMA contends that a number of developments have drawn this assumption into question, however. First, when the Ninth Circuit reversed this Court, the United States...