Legal Case Summary

whenever you're ready. Morning, honors. John Mueller for the Chesapeake Bay Foundation. Sorry. It is our position that the District Court abused its discretion by denying the Chesapeake Bay Foundation the right to intervene in a civil action concerning an administrative order that was issued by the Environmental Protection Agency. The Chesapeake Bay Foundation is a regional nonprofit citizens organization whose primary mission is to save the Bay through working to restore rivers and streams throughout the 64,000 square mile Chesapeake Bay watershed. The Bay Foundation has been involved in this work for over four decades through advocacy, education, and restoration programs. One aspect of our work is restoring local waterways that have been harmed by polluted farm runoff. We do this by lobbying for funds like through the farm bill that are set aside for restoration initiatives on farms. We seek grants from organizations that provide for the installation of best management practices on farms like planting buffers alongside streams, fencing cattle and livestock out of the streams. We also provide technical advice to farmers on how to install best management practices and what are the best practices to put on their farms. We also provide membership manpower. Many of our members participate in these activities, planting trees and helping farmers restore their property and restore their local watersheds. We also work to ensure the government does its job to enforce the Clean Water Act. And with respect to farming, EPA's primary enforcement tool is the concentrated animal feeding operation program that is part of the Clean Water Act and point source permitting through the National Pollution Discharge Elimination System. And that system only addresses farms that actually discharge pollutants into local waterways. The Just Big Bay Foundation sought to intervene in this matter because we believe that the court was in the verge of issuing a ruling that would have far reaching implications with respect to EPA's authority to administer that KFO concentrated animal feeding operation program. Well, now that obviously can't be the reason it being untimely

. I mean, that you felt like he was about to rule adverse to your interests. So my concern is, what reason did you give the district judge for the timing of your filing to intervene? In fact, Your Honor, we had been keeping an eye on the case because we understood that there were some novel issues with respect to the kind of discharge from this farm. We thought that the government had it under control, the government actually withdrew its unilateral order to the farmowner of Miss Alt and then moved to dismiss the case. And so we believe that the right decision there was for the district court to in fact dismiss the case and then there would be no issue and no reason for us to get involved. But when we read the court's decision on the motion to dismiss, we recognized that Judge Bailey was actually looking at a much broader issue, which is to address, as he put it, typical rainwater flowing off of farms and that he wanted to write an opinion that it was addressed for thousands of arms, not just this one farm in particular. And it was at that juncture that we realized that this case was going off the rails from our point of view. Plus another thing had happened. The Bay Foundation had actually sued the Environmental Protection Agency back in 2009 and were you able to settle? You tell Judge Bailey that when you filed your motion to intervene and were offering an explanation for why it was timely that that was the reason you were trying to get into the case. That the motion to dismiss had been denied. Yes sir, we did do that. And we also raised the fact with the court that we had sued EPA and had a settlement agreement with EPA. And that settlement agreement had been recently modified. He issued his opinion in April and may we had to modify that settlement agreement with EPA that addressed the CAFO program specifically. And EPA Region 3 was in fact supposed to go out and review farms and determine whether any of these farms were actually discharging under the CAFO program. And one of their aspects of the settlement agreement was to then issue similar unilateral orders to those farmers saying you need to get a discharge permit. So you're watching the case, everything is going satisfactorily, so to speak, not completely. But then you think, see it, take a turn for the worst, and then you want to intervene to take your entry

. Yes, Your Honor. And I think one of the things that's important about the timelies on this issue and this case had great significance to CBF, simply because we do work with farmers. And we wanted to maintain that working relationship. In fact, I went up to the Shenandoah Valley and interviewed several farmers that we had worked with. I'd called farmers in West Virginia to talk to them about their point of view. We actually had a full meeting of our board, which is much different than the typical way we litigate matters. We usually refer to a small subcommittee of board members and decide whether to go for a litigation. But the decision to get involved in this case was a unique one for us, it was novel for us. And we had to do it the best way we could to look at all the different aspects of that case and what the possible pitfalls were going for. And after that review, we filed our motion to intervene. It was a day after the motion for some judgment was filed by the plaintiffs. The plaintiffs actually had an opportunity to respond to our motion to intervene. And then on July 30th, Judge Bailey denied our motion to intervene. We had to act quickly because we were prepared to file our motion for some judgment, or cross-motion for some judgment on August 1st. And so within two days, we converted that brief into an amicus brief, filed a motion with a court asking it to consider our point of view, which goes beyond the information that had been provided by the Environmental Protection Agency and the other defendant interveners. Because of our work, we're letting you intervene. Wouldn't that have disrupted the briefing order or the scheduled, the district judges set? I mean, the plaintiffs have already filed their motion

. Yes, for some judgment or motion to dismiss. For some judgment. Letting you intervene means that process got to start all over again. No, otherwise the plaintiffs don't have an opportunity to respond to any additional issues you're going to add to the case. That's not correct, Your Honor, because the way the briefing schedule was set out is that the government was then in the defendant, other defendant interveners that were already in the case, were going to file their responsive pleadings and cross-motions a month later on August 1st. We were prepared to do that. We, in fact, wrote in our motion to intervene. We've recognized there's some issues here with respect to how many pages the plaintiffs are going to have to respond to. So we offered to cut our brief almost in half to go from 40 pages to 25 pages. Judge Bailey looked at that and basically said, well, that's a great effort, but it's a little too late. And it ruled essentially that you don't think it would have affected how the plaintiffs drew their brief up. I don't know that there are going to be other parties involved with possibly different arguments that they have to anticipate. Well, they did know that the government was going to file a brief and they knew that other defendant and interveners were going to file a brief. Right. And they would get the opportunity to respond. Obviously, your interests were completely represented by those parties that you were going to have. There were other issues unique to you that you wanted to introduce into the case

. Yes, sir. The plaintiffs at that point are not aware of. Well, they would have been aware of when we filed our brief and they had the right to file the brief. When they filed their brief, they were not aware of it when they filed their brief. But that, I mean, a lot of us are trial lawyers here and we all know that we can't really anticipate what the other side is going to say in defense until we get their brief. And that was exactly our point here. Well, the case being going on for a long time, I suspect there have been a lot of discussions and a lot of familiarity with what everybody's position was. Well, actually, this is a rather unique case. In the sense, this is a Administrative Procedure Act case and there was no discovery here. So what the court was looking at and all the parties were looking at was the record submitted by EPA as far as the administrative record. That was the basis of the decision and that was what was being called in question. We actually wanted to add to that record by putting in a declaration from a fellow who had worked for the National Resource Conservation Service at an arm of the Department of Agriculture, who'd worked with farmers for over two decades, installing best management practices on farms and instructing farmers like Mrs. Alt and how they could prevent runoff from their farm. So you're, we want to add to the Administrative Record. And not so much add to the record, but be able to put our view of the fat evidence. And we did want to bring in, yes, additional photographic evidence because one of the things that was was, well, I'll have to David's photographs. We did file that as part of our amicus brief, yes sir

. And so we had the affidavit from Mr. White's Garver and then we found other documents from EPA. File the amicus brief after you were denied the right to intervene. Yes sir. And the court... You go drive primarily to say on the time-inus and denied your right to intervene. That was the sole issue he looked at because he said that our filing foreclose that our ability to respond. And that's not correct. He said time-inus and prejudice. Well, he equated the two. Right. But he said it was untimely. He said it was untimely and that..

. That could not be so I said that was an abuse of his discretion. Right. And how do you do that? Well... How do you... I mean, obviously, any one of the three of us might have ruled differently from this district judge, but how do you get to an abusive discretion on these circumstances? You do agree that's the standard as Judge King said. Yes. Okay. Yes. Well, actually, there are three factors to look at with respect to timeliness. And one of those is prejudice. They're not prejudice because they had the right to respond to our brief. So maybe we added some new issues, but they had the ability to respond. In fact, the court allowed the plaintiffs to file a surreply brief after the governments and the defendants interveners filed their cross motions for some adjustment because they said there were new issues in the case

. So it was not like Judge Bailey didn't have any ability to make any burden less on the other party on the plaintiffs. And in fact, we did our best... Well, how do we equate the judges' failure to do that to an abusive discretion? Because he made an incorrect factual decision. He said that the plaintiffs had no ability to respond to our arguments. Well, that may have been a slight overstatement, but again, I'm really interested in this. What are we saying to district judges if we come along behind them? I mean, this is pretty routine. And most of the times it's granted. And that's the point. And even when it's denied, it's rarely impealed. And you're an amicus. Well, no, we're not. He denied our amicus motion. So we don't have an amicus capability. That's denied your amicus. He denied the amicus

. And that's the problem. We don't have our issues being brought forward. Our issues are not being protected by the government. They're not being protected by the other defendant interveners. And that's the sole problem here. And if gets your point about, you know, do you feel like... The merits are coming up to us. Have you sought intervention in that case? No, the case held that decision or that case in a balance until it ruled on our emotions to intervene. And so one of the things we've been trying to figure out here is, you know, is there a mechanical way in which we can avoid going back to Judge Bailey, having them review our materials and then come back to the court again. You could be following amicus with us, right? In the other appeal. We could, but I know that the court's view on amicus. And we have new information that we would like to submit to the court about why the judge's decision goes way beyond focusing just on this one farm. And the photographic record that we intend to put into evidence and declaration of Mr. Weisscarver established that fact where we have photographs of chicken clean out operations where they have dumped mounds of manure right beside a creek. And it's discharging into that creek

. And we've been denied the right to show if you say that all agricultural stormwater, that means any rain that washes off a farm is exempt from the Clean Water Act, then all of those farms that are clearly in violation of the law get off scot-free. And that completely undercuts our ability to restore waters within the Chesapeake Bay region. And so to answer your question about, you know, where's the abusive discretion? The abusive discretion is in the fact that he found that they didn't have ability to respond to our arguments. When, in fact, they did. They had the chance to respond to our motion to intervene, which they did. And they also had the ability to respond in the reply brief when we filed our motion on August 1st. So one of the ways we thought that the court might get around this problem, ascending it back to Judge Bailey and then coming back again, restarting the appeal process, is that for the court to allow us to intervene here, but also allow us to put our evidence into the record, make that be part of the record. So you want to file a motion to intervene and then a motion to supplement the record? Correct. So one thing I don't understand is I'm presuming you're keeping up with the case that you know what the briefing schedule is. You see when the plaintiff's brief is due. You want to intervene. Why don't you go in and ask the court then before the briefs are filed and commitments are made and positions are taken to suspend the briefing schedule. Say, look, we want in this case to affect what they do. We don't want to wait. What you did is you waited. You, well, I'm not saying you did it intentionally, but what the result was, you got to see the plaintiff's brief, see what it said. And then you filed and want to get in the case when you really want to get into it as a full party and give everybody a fair shot at seeing that you would have made that motion

. For breach of file. Respectfully, I disagree, Your Honor, because you know, the briefing schedule is set. And so the one party files their brief, the plaintiff's file there. So you can go in and ask the court to amend the briefing schedule? Well, they had already amended it several times. And the court said, we recognize they've amended it several times. We're going to go forward on the schedule that we have. We felt we were prepared to meet that schedule, which is the same day the government's brief was due. We were ready to file our brief. So there was really nothing for us to ask the court to do. We were going to be on time. Thank you. Thank you. Time's up here. Mr. Banks, you have some time remaining. Please, the court. Good morning, Your Honor. The questioning and discussion so far has turned primarily on the time when this issue, naturally, because of Judge Bailey, based his decision on that. And I will get to those questions and issues in just a moment. But I wanted to point out the outset that the outcome of this appeal really is controlled by a decision this court issued last year on adequacy of representation. It was the steward versus huff case. And in that case, the court decided that for the first time that it would join other circuits in announcing the following rule that where an intervener proposed intervener shares the ultimate objective in a case with a government agency. There is a strong presumption that that government agency represents that proposed intervener's interests, which can be overcome only by a strong showing of adversity of interest. Or non-feasant by the government or collusion. I don't think either of the latter two are being argumented. Not comfortable with the reasons the district judge gave for denying the motion. We're quite comfortable, Your Honor, but you're not arguing any reason he gave. I certainly intend to turn to that. And I can now decide that case. Yes, we do. And what's the name of steward versus huff? Steward versus huff. All right. And I would point out that the that the appellants made no discussion of that case in reply. But I will turn to the reasons offered by CBF or their tartiness in this case, which are factors to be considered

. The questioning and discussion so far has turned primarily on the time when this issue, naturally, because of Judge Bailey, based his decision on that. And I will get to those questions and issues in just a moment. But I wanted to point out the outset that the outcome of this appeal really is controlled by a decision this court issued last year on adequacy of representation. It was the steward versus huff case. And in that case, the court decided that for the first time that it would join other circuits in announcing the following rule that where an intervener proposed intervener shares the ultimate objective in a case with a government agency. There is a strong presumption that that government agency represents that proposed intervener's interests, which can be overcome only by a strong showing of adversity of interest. Or non-feasant by the government or collusion. I don't think either of the latter two are being argumented. Not comfortable with the reasons the district judge gave for denying the motion. We're quite comfortable, Your Honor, but you're not arguing any reason he gave. I certainly intend to turn to that. And I can now decide that case. Yes, we do. And what's the name of steward versus huff? Steward versus huff. All right. And I would point out that the that the appellants made no discussion of that case in reply. But I will turn to the reasons offered by CBF or their tartiness in this case, which are factors to be considered. And also the prejudice that resulted to the other parties from their untimely effort to intervene. There were nine parties in this case. None of those nine parties supported CBF's untimely effort to intervene in this case. We were on the eve of we were actually into some rejudgment briefing. We were 13 months after the filing of the complaint in the case. We were four months after CBF concedes that it knew about the case. We were two and a half months after the district court denied EPA's motion to dismiss the case. And CBF says that at that point realized what was that state. Two and a half months were were awaited until the motion to intervene was filed one day after the plaintiffs filed our motion for summary judgment. Now the reasons they give focus primarily on this side agreement that they had with EPA. And they felt that this side agreement could be undercut by a decision this district judge might make on the merits of the case. First of all, the district court did not say that it intended to expand this case to cover all manner of farms in the Chesapeake watershed or elsewhere. What it said and should have said is that it intended to decide the single legal issue in the case, which was a question of statutory interpretation, and that its decision on that could affect all farms. Well, of course it could. And it had on the record before it, not the farms that CBF would like to have placed into the record, not the photographs and the evidence about poor farming practice. It had lowest alt's farm. And the sole issues were whether the dust that blows out of ventilation fans at a poultry farm or little particles of manure that are occasionally tracked out on the ground when machinery runs in and out or feathers or dander from the chickens that blows out onto the ground, whether that should be regulated under the Federal Clean Water Act when it rains and washes that dust and those little particles off across a pasture and into a creek

. And also the prejudice that resulted to the other parties from their untimely effort to intervene. There were nine parties in this case. None of those nine parties supported CBF's untimely effort to intervene in this case. We were on the eve of we were actually into some rejudgment briefing. We were 13 months after the filing of the complaint in the case. We were four months after CBF concedes that it knew about the case. We were two and a half months after the district court denied EPA's motion to dismiss the case. And CBF says that at that point realized what was that state. Two and a half months were were awaited until the motion to intervene was filed one day after the plaintiffs filed our motion for summary judgment. Now the reasons they give focus primarily on this side agreement that they had with EPA. And they felt that this side agreement could be undercut by a decision this district judge might make on the merits of the case. First of all, the district court did not say that it intended to expand this case to cover all manner of farms in the Chesapeake watershed or elsewhere. What it said and should have said is that it intended to decide the single legal issue in the case, which was a question of statutory interpretation, and that its decision on that could affect all farms. Well, of course it could. And it had on the record before it, not the farms that CBF would like to have placed into the record, not the photographs and the evidence about poor farming practice. It had lowest alt's farm. And the sole issues were whether the dust that blows out of ventilation fans at a poultry farm or little particles of manure that are occasionally tracked out on the ground when machinery runs in and out or feathers or dander from the chickens that blows out onto the ground, whether that should be regulated under the Federal Clean Water Act when it rains and washes that dust and those little particles off across a pasture and into a creek. That was the legal question. The Clean Water Act says that agricultural storm water is not controllable by EPA with a permit under this statute. And he intended to decide that question. And if he decided that in the circumstances permitted in this administrative record, that was agricultural storm water runoff and exempt from regulation, it would affect other farms where good housekeeping practices are carried out and where manure piles are not placed next to streams. And where the statute evidences Congress's intent to not settle farmers who are doing a good job of managing their farms with federal regulation. That was the issue. And yes, it could affect a lot of farms, the ones that are doing it the way lowest alt manages per farm. So what do they offer? They have this agreement to side agreement with EPA. And they say in their brief that this side agreement included four things. First EPA promised to assess state regulatory programs. I assume the ones in the Chesapeake watershed for whether they're adequate to control capots. EPA can assess state programs whether or not this district court decides this one legal issue. Those programs have to do with a lot of things, including the land application of manure to grow crops, which Mrs. Zolt does not even do. Second EPA promised to designate more capots. There's a provision of the regulations allowing EPA to come along and designate a farm as a capo if it chooses to. But low assault already operates a capo

. That was the legal question. The Clean Water Act says that agricultural storm water is not controllable by EPA with a permit under this statute. And he intended to decide that question. And if he decided that in the circumstances permitted in this administrative record, that was agricultural storm water runoff and exempt from regulation, it would affect other farms where good housekeeping practices are carried out and where manure piles are not placed next to streams. And where the statute evidences Congress's intent to not settle farmers who are doing a good job of managing their farms with federal regulation. That was the issue. And yes, it could affect a lot of farms, the ones that are doing it the way lowest alt manages per farm. So what do they offer? They have this agreement to side agreement with EPA. And they say in their brief that this side agreement included four things. First EPA promised to assess state regulatory programs. I assume the ones in the Chesapeake watershed for whether they're adequate to control capots. EPA can assess state programs whether or not this district court decides this one legal issue. Those programs have to do with a lot of things, including the land application of manure to grow crops, which Mrs. Zolt does not even do. Second EPA promised to designate more capots. There's a provision of the regulations allowing EPA to come along and designate a farm as a capo if it chooses to. But low assault already operates a capo. We already know it's a capo. It's one of the larger capos. So that wasn't an issue. And EPA's ability to designate others as capos wasn't an issue in this case. Third EPA promised to review existing permits for capos and assure that they were adequate. Well, low assault doesn't have a permit, doesn't need a permit. And so EPA's ability to review permits at other farms has nothing to do with how this district court would rule on the merits in this case. And finally, EPA decided as it has many times to review the overall situation with agriculture in the Chesapeake and decide whether more regulation would be necessary. EPA always has that authority, but it made a promise to CVF to do that, I presume, by a time certain. So these are the weak rationalizations offered by CVF to suddenly have an interest in this case because the district court decided it was going to decide the legal issue. The only legal issue in the case, the reason the case was brought and the issue that the plaintiffs presented to the district court in a motion for summary judgment and ultimately it was decided in that way. Now, what was the prejudice of this tardy attempt to intervene? First of all, as Chief Judge Tracks are pointed out, we were not able to anticipate all of the litany of evidence and expert opinion and arguments that the Chesapeake Bay Foundation would bring into this case if it were allowed to intervene. We didn't know they wanted to intervene, but in our motion for summary judgment, we certainly would have anticipated had we known and we would have made strong arguments that this was a case limited to the administrative record compiled by EPA to support its decision that was being challenged in the case and that all the rest of these so-called facts and expert opinions about farms and about the watershed should not be allowed in the case and we would have made that in our opening a brief and supportive summary judgment. In addition to that, here we are with five environmental organizations and the United States of America against us and we're anticipating after we file our motion for summary judgment there will be two large motions for summary judgment from those existing parties as well as responses to our motion for summary judgment. If CVF has allowed in the case now it's not going to be two motions and two responses, it's going to be three of each and we can tell from what CVF later filed as an amicus brief it was going to be massive and far from hundreds of pages of materials and so we were going to need an extension. There make a submission wasn't filed though they said. It was filed and Judge Bailey looked at it and said I'm not going to allow this to be accepted into the case

. We already know it's a capo. It's one of the larger capos. So that wasn't an issue. And EPA's ability to designate others as capos wasn't an issue in this case. Third EPA promised to review existing permits for capos and assure that they were adequate. Well, low assault doesn't have a permit, doesn't need a permit. And so EPA's ability to review permits at other farms has nothing to do with how this district court would rule on the merits in this case. And finally, EPA decided as it has many times to review the overall situation with agriculture in the Chesapeake and decide whether more regulation would be necessary. EPA always has that authority, but it made a promise to CVF to do that, I presume, by a time certain. So these are the weak rationalizations offered by CVF to suddenly have an interest in this case because the district court decided it was going to decide the legal issue. The only legal issue in the case, the reason the case was brought and the issue that the plaintiffs presented to the district court in a motion for summary judgment and ultimately it was decided in that way. Now, what was the prejudice of this tardy attempt to intervene? First of all, as Chief Judge Tracks are pointed out, we were not able to anticipate all of the litany of evidence and expert opinion and arguments that the Chesapeake Bay Foundation would bring into this case if it were allowed to intervene. We didn't know they wanted to intervene, but in our motion for summary judgment, we certainly would have anticipated had we known and we would have made strong arguments that this was a case limited to the administrative record compiled by EPA to support its decision that was being challenged in the case and that all the rest of these so-called facts and expert opinions about farms and about the watershed should not be allowed in the case and we would have made that in our opening a brief and supportive summary judgment. In addition to that, here we are with five environmental organizations and the United States of America against us and we're anticipating after we file our motion for summary judgment there will be two large motions for summary judgment from those existing parties as well as responses to our motion for summary judgment. If CVF has allowed in the case now it's not going to be two motions and two responses, it's going to be three of each and we can tell from what CVF later filed as an amicus brief it was going to be massive and far from hundreds of pages of materials and so we were going to need an extension. There make a submission wasn't filed though they said. It was filed and Judge Bailey looked at it and said I'm not going to allow this to be accepted into the case. He rejected it and he said the reason he rejected it is that it didn't tell him anything new. They made the same legal arguments that EPA made. They had the same interests and yet they don't add things that weren't in the administrative record exactly. Is that order in the joint appendix here? I believe it is. The denial of the effort to get an amicus brief file. Believe it's in the joint appendix. So 30 days to respond to three motions for summary judgment and to reply to three responses to our motion for summary judgment would not have been adequate. We would have sought additional time. In addition because this effort to go wavy on the administrative record was problematic for us, we would have filed a motion to strike all of this material had CVF been allowed into the case at this late date and that would have required not only further effort but further time to allow briefing on whether this material should be allowed in the case before we could get back to summary judgment briefing. So yes we were prejudiced. The case was going to slow down. Judge Bailey recognized that. The case was nearly at its end and it was going to be reduced to a crawl while he had to tackle these side issues. These tactical attempt by CVF to expand the record without any justification. Get that back on track and then produce a longer briefing schedule for summary judgment so that we could actually get a decision on the single legal issue in the case. So those are the ways we were prejudiced. Those were the reasons that CVF offered for waiting so long

. He rejected it and he said the reason he rejected it is that it didn't tell him anything new. They made the same legal arguments that EPA made. They had the same interests and yet they don't add things that weren't in the administrative record exactly. Is that order in the joint appendix here? I believe it is. The denial of the effort to get an amicus brief file. Believe it's in the joint appendix. So 30 days to respond to three motions for summary judgment and to reply to three responses to our motion for summary judgment would not have been adequate. We would have sought additional time. In addition because this effort to go wavy on the administrative record was problematic for us, we would have filed a motion to strike all of this material had CVF been allowed into the case at this late date and that would have required not only further effort but further time to allow briefing on whether this material should be allowed in the case before we could get back to summary judgment briefing. So yes we were prejudiced. The case was going to slow down. Judge Bailey recognized that. The case was nearly at its end and it was going to be reduced to a crawl while he had to tackle these side issues. These tactical attempt by CVF to expand the record without any justification. Get that back on track and then produce a longer briefing schedule for summary judgment so that we could actually get a decision on the single legal issue in the case. So those are the ways we were prejudiced. Those were the reasons that CVF offered for waiting so long. I mean they still not have answered your question as to why it took two and a half months after the motion to dismiss was denied for them to hold their board meeting and decide this case was important enough to get involved two and a half months and had they gotten involved shortly after the motion to dismiss was denied then we could have worked out a briefing schedule then we could have considered whether in a northerly fashion whether there should be additional material in this case. If there are not further questions about time limitless I would turn back just briefly if I may to the steward case. In that case it was a challenge to an abortion statute and the attorney general of Virginia was the defendant supporting that statute trying to sustain that statute and interveners tried to come into the case to support the state on their side of the case and this court said that there is a strong presumption that a government agency represents the interest of those with whom it shares the ultimate objective in the case. The ultimate objective in that case was sustaining a statute and parties conceded that they shared that ultimate objective. Of course the ultimate objective in this case is that EPA's order that we challenged would be upheld and not set aside under the administrative procedures. It was as simple as that. Our motion the government's objective EPA's objective was the same as CVS to have our motion for summary judgment denied. This was a yes no case this was either we win or EPA wins and they wanted EPA to win. So when you have this strong presumption that a government agency represents your interest the showing that must be made is that there are some adversity of interest between the proposed intervener and the government agency. Well CBF shows nothing here they make no attempt to show any adversity of interest. They share the same objective they they merely say that there was no guarantee that EPA would make all the same legal arguments they would make. Well we know that's not true because CBF later submitted its legal arguments in the form of a proposed amix brief and they were the same legal arguments the same arguments that EPA had already made. They say that EPA is limiting its defense of its order to legal argument whereas these interveners CBF want to put facts in the administrative record. Well that was precisely the distinction that this court found wanting in the Stewart case. Those proposed interveners wanted to put facts into the record where into the case whereas the attorney general of Virginia wanted to argue the law and only the law. And this court found that that was not an adversity of interest it was merely merely litigation tactics and differences of litigation tactics as you had in that case and we have in this case are not sufficient to show adversity of interest. And finally I gather that EPA CBF argues that EPA might shift its position

. I mean they still not have answered your question as to why it took two and a half months after the motion to dismiss was denied for them to hold their board meeting and decide this case was important enough to get involved two and a half months and had they gotten involved shortly after the motion to dismiss was denied then we could have worked out a briefing schedule then we could have considered whether in a northerly fashion whether there should be additional material in this case. If there are not further questions about time limitless I would turn back just briefly if I may to the steward case. In that case it was a challenge to an abortion statute and the attorney general of Virginia was the defendant supporting that statute trying to sustain that statute and interveners tried to come into the case to support the state on their side of the case and this court said that there is a strong presumption that a government agency represents the interest of those with whom it shares the ultimate objective in the case. The ultimate objective in that case was sustaining a statute and parties conceded that they shared that ultimate objective. Of course the ultimate objective in this case is that EPA's order that we challenged would be upheld and not set aside under the administrative procedures. It was as simple as that. Our motion the government's objective EPA's objective was the same as CVS to have our motion for summary judgment denied. This was a yes no case this was either we win or EPA wins and they wanted EPA to win. So when you have this strong presumption that a government agency represents your interest the showing that must be made is that there are some adversity of interest between the proposed intervener and the government agency. Well CBF shows nothing here they make no attempt to show any adversity of interest. They share the same objective they they merely say that there was no guarantee that EPA would make all the same legal arguments they would make. Well we know that's not true because CBF later submitted its legal arguments in the form of a proposed amix brief and they were the same legal arguments the same arguments that EPA had already made. They say that EPA is limiting its defense of its order to legal argument whereas these interveners CBF want to put facts in the administrative record. Well that was precisely the distinction that this court found wanting in the Stewart case. Those proposed interveners wanted to put facts into the record where into the case whereas the attorney general of Virginia wanted to argue the law and only the law. And this court found that that was not an adversity of interest it was merely merely litigation tactics and differences of litigation tactics as you had in that case and we have in this case are not sufficient to show adversity of interest. And finally I gather that EPA CBF argues that EPA might shift its position. It's taking a position in the case and has throughout the district court proceedings but might take a different position here might take a different position if the case were to get back before the district court in some way but that's mirror speculation it's certainly not adversity to speculate that EPA might take a different position. Then the one it has already taken that comports exactly with CBF's position in the case. There is not a glimmer of daylight between CBF and EPA in terms of their position on the legal issue decided in this case that's not that's not even a distinguishable legal position let alone an adversity in terms of their interest and their stance in the litigation. So we think Stuart controls this case but we also believe that there is that the record absolutely supports Judge Bailey's exercise of his discretion in finding that this attempt to intervene was untimely would have prejudiced the existing parties and would have slowed and disrupted the litigation he had in front of. Mr. Banks what would be the practical fact of a reversal here? If the reversal is on the timeliness question we think we're generally just an abuse of discretion. I mean it. Without deciding the intervention motion. Without deciding the implementation. Well there would be a remand for Judge Bailey to consider the intervention motion I knew but we've found no case that would support the notion that the judgment below on the merits would be disrupted at all. And the case is no longer before Judge. That's correct it's on appeal here and being held on behalf and if it went back. Well that presents a real dilemma for CBF because if if their issue of intervention were before the court but the merits were not let's assume that that Judge Bailey might be able to decide the intervention motion allow them into the case. Now they want to participate in the appeal but they did not file a protective notice of appeal. So there they are they might try a 60b motion to seek relief from the judgment on the merits but that jurisdiction is not in front of the district court. So I think they're out of what. They certainly could not now file an appeal because time has passed and the deadline has passed and that's jurisdiction

. It's taking a position in the case and has throughout the district court proceedings but might take a different position here might take a different position if the case were to get back before the district court in some way but that's mirror speculation it's certainly not adversity to speculate that EPA might take a different position. Then the one it has already taken that comports exactly with CBF's position in the case. There is not a glimmer of daylight between CBF and EPA in terms of their position on the legal issue decided in this case that's not that's not even a distinguishable legal position let alone an adversity in terms of their interest and their stance in the litigation. So we think Stuart controls this case but we also believe that there is that the record absolutely supports Judge Bailey's exercise of his discretion in finding that this attempt to intervene was untimely would have prejudiced the existing parties and would have slowed and disrupted the litigation he had in front of. Mr. Banks what would be the practical fact of a reversal here? If the reversal is on the timeliness question we think we're generally just an abuse of discretion. I mean it. Without deciding the intervention motion. Without deciding the implementation. Well there would be a remand for Judge Bailey to consider the intervention motion I knew but we've found no case that would support the notion that the judgment below on the merits would be disrupted at all. And the case is no longer before Judge. That's correct it's on appeal here and being held on behalf and if it went back. Well that presents a real dilemma for CBF because if if their issue of intervention were before the court but the merits were not let's assume that that Judge Bailey might be able to decide the intervention motion allow them into the case. Now they want to participate in the appeal but they did not file a protective notice of appeal. So there they are they might try a 60b motion to seek relief from the judgment on the merits but that jurisdiction is not in front of the district court. So I think they're out of what. They certainly could not now file an appeal because time has passed and the deadline has passed and that's jurisdiction. You say this appeals move. This appeal then is moved because nothing will be done if it goes back. There certainly have been cases that decided exactly that that because there is no meaningful relief that the appealant can be given escort lacks jurisdiction to decide. They could seek to be the makers here. Yes they could. Yes they could and we would hope this court would and the time comes be very circumspect about how much evidence of other farms gets into the case. I like the way you put that. Further questions? Judge Davis? No thank you. Any other questions? Thank you. Thank you Mr. Banks. Here from Mr. Mueller and reply. Judge James to answer your question yes the denial of the Amicus was in the record and it's a J.A. 242. Sure

. You say this appeals move. This appeal then is moved because nothing will be done if it goes back. There certainly have been cases that decided exactly that that because there is no meaningful relief that the appealant can be given escort lacks jurisdiction to decide. They could seek to be the makers here. Yes they could. Yes they could and we would hope this court would and the time comes be very circumspect about how much evidence of other farms gets into the case. I like the way you put that. Further questions? Judge Davis? No thank you. Any other questions? Thank you. Thank you Mr. Banks. Here from Mr. Mueller and reply. Judge James to answer your question yes the denial of the Amicus was in the record and it's a J.A. 242. Sure. Okay thanks. One of the other points that Mr. Banks makes is that nobody supported our intervention. Well in fact the government never does the government always takes no position so that's not unusual. They defend no position. No position. They didn't object to your intervention. Yes sir and respect to the Amicus papers. Did they object to that? They took no position. They took no position. And as far as the other defendant interveners they basically said we're worried that you're going to make us file a joint brief and we recognize that we have different issues than CBF does and we don't want to waste our paper or their space covering a CBF issue so that they didn't object to us for just debating that they just don't want to file a joint brief. Now with respect to these questions about the adequacy of representation I have to take issue with Mr. Banks' arguments. First you know we went to great pains in fact to make certain that our brief did not overlap what the government wrote. We're in fact involved with litigation with the Farm Bureau that's on appeal to the third circuit and involves the Chesapeake Bay Total Maximum Daily Load and their appeal of that decision of EPA to issue that Total Maximum Daily Load. And before Judge Rambo in the middle district of Pennsylvania she said that the government was not representing our interests and we raised the exact same claims here that the Fowler settlement agreement against EPA brought our issues to a different level that in fact the government may change its position midstream. The fact that the court is not aware of is that it took us 30 years to get where we are today

. We had to file a suit against EPA to get them to actually issue a Total Maximum Daily Load to take action with respect to concentrated animal feeding operations to look at stormwater runoff and actually take that action. And so to suggest that our interests are the same is just patty faults. So with that you know on our I do believe that there are some issues or some ability for the court to create a remedy here that would allow us to get our evidence into the record and to participate on intervention. We can go back before Judge Bailey or the court can figure out a way to get us involved here. So thank you your honors. Thank you Mr. Mueller. I will come down and greet Council then take a short break