5th Circuit Holds State's Interests Adequately Represented by Levee Board; Denies Motion to Intervene

Per Haspel & Davis Milling & Planting Co. Ltd. v. Board Of Levee Commissioners of The Orleans Levee Dist. and State Of Louisiana, --- F.3d ----, 2007 WL 2079880 (5th Cir.(La.) Jul 23, 2007) (NO. 07-30086):
In the district court, the State filed a motion to intervene pursuant to, inter alia, Fed. R. Civ. Proc. 24 for the limited purpose of enforcing Louisiana's anti-seizure provisions found in La. Const. art. XII, § 10(C) and La.Rev.Stat. Ann. § 13:5109(B)(2). The district court denied the State's motion, concluding that the State did not have an unconditional right to intervene, and that any interest the State had was adequately represented by the existing parties.

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Fed. R. Civ. Proc. 24(a)(1) allows intervention of right "when a statute of the United States confers an unconditional right to intervene." The State argues that 28 U.S.C. § 2403(b) confers upon it an unconditional right to intervene in the instant suit because the constitutionality of La. Const. art. XII, § 10(C) and La.Rev.Stat. Ann. § 13:5109(B)(2) were called into question by the landowners' efforts to seize public property and funds.

We agree with the district court that this case does not challenge or question the constitutionality of La. Const. art. XII, § 10(C) or La.Rev.Stat. Ann. § 13:5109(B)(2), and thus, 28 U.S.C. § 2403(b) does not provide the State an unconditional right to intervene. In granting the landowners' requests for writs of seizure and subsequently denying the Levee Board's motion to vacate such writs, the district court merely found the relevant provisions inapplicable to the instant case, thus raising only questions of the proper interpretation of Louisiana law, and not its constitutionality.

The district court correctly concluded that 28 U.S.C. § 2403(b) does not provide the State an unconditional right to intervene.

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The landowners make two arguments in support of the district court's denial of the State's motion to intervene of right under Fed. R. Civ. Proc. 24(a)(2): (1) the motion was untimely; and (2) the State's interests were adequately represented by the Levee Board. Because we conclude that the State's interests were adequately represented by the Levee Board, we do not consider the timeliness issue.

The burden of establishing inadequate representation is on the applicant for intervention. This burden is "minimal" and "is satisfied if the applicant shows that representation of his interest 'may be' inadequate ...." However, "it cannot be treated as so minimal as to write the requirement completely out of the rule." In addition, "when the party seeking to intervene has the same ultimate objective as a party to the suit, the existing party is presumed to adequately represent the party seeking to intervene unless that party demonstrates adversity of interest, collusion, or nonfeasance."

The State argues that it is not seeking "the same ultimate objective" as the Levee Board because its objective is more expansive in that the State is seeking to ensure that Louisiana's anti-seizure provisions are uniformly applied to prevent the seizure of public property and funds in satisfaction of any judgment, and not merely a judgment against the Levee Board. Nevertheless, even assuming that the State's interest is broader than that of the Levee Board, the more narrow issue regarding execution of the judgment against the Levee Board is the only matter currently before us. Thus, the Levee Board and the State have the same ultimate objective in this case.

The State does not allege collusion, nonfeasance, or adversity of interest. The State only asserts that the Levee Board cannot adequately represent its interests because it is now dissolved and, even when it was in existence, it had no juridical authority to represent the State because it was a political subdivision and not an agency of the State. Contrary to the State's assertions, the State concedes that the Levee Board "has very able and persuasive counsel." Furthermore, even assuming that the Levee Board does not have the "juridical" authority to represent the State, when evaluating a motion to intervene, our concern is whether the Levee Board adequately represents the State's interests, and not whether the Levee Board is actually representing the State as a party (which the Levee Board does not purport to do). In addition, because we conclude that it was error for the district court to render judgment against the Levee Board, we do not reach the seizure issue which is the concern of the State.

The district court properly concluded that the Levee Board adequately represents the State, and thus, we affirm the court's order denying the State's motion to intervene as a matter of right pursuant to Fed. R. Civ. Proc. 24(a)(2).