United States v. 36.96 Acres of Land

100 F.R.D. 78 (N.D. Ind. 1983)



Where an intervenor does not assert an interest in the property subject to an action, it has no protectable interest that can be impaired or impeded, nor does it have the right to assert that its interest is being inadequately represented by the existing parties.


On August 7, 1978, plaintiff, United States of America (United States) filed its "Notice of Condemnation" affecting 36.95 acres of land owned by Northern Indiana Public Service Company (NIPSCO) adjacent to its Michigan City Generating Station. NIPSCO filed its answer, objections to condemnation and motion to sustain objections on September 25, 1978. Subsequently, a request for a hearing on NIPSCO's legal objections was filed on October 26, 1981. A trial date of February 8, 1982 was set by order of the court October 9, 1981. That trial setting was vacated by order of January 22, 1982. On April 4, 1982, the Council filed a motion to intervene as a plaintiff under Rule 24. NIPSCO's response to the motion to intervene and a motion to strike were docketed April 8, 1982. Council then filed a memorandum in support of its motion to intervene and an answer to NIPSCO's motion to strike on April 20, 1982. On September 7, 1983, the United States and NIPSCO entered into a stipulation and joint motion to dismiss. A pretrial conference was held in Lafayette, Indiana on October 20, 1983 where oral argument was heard on the intervention issue and the parties were instructed to file supplementary briefs by October 31, 1983. In addition, the Council filed, in open court, a copy of a pleading related to the subject matter of this case, a complaint for mandamus under 28 U.S.C. § 1361, which had been filed on October 19, 1983 in the United States District Court for the District of Columbia. In compliance with this court's directive, supplemental briefs were filed by the Council on October 31, 1983 and by NIPSCO on November 1, 1983. To date, the United States had made no independent response to the Council's motion to intervene.


Can the City represent an interest that does not pertain to the underlying litigation?




The court held that, although four years had elapsed since the institution of the action and the original parties had submitted a stipulated judgment for the court's approval, from the commencement of the action, the Council had no reason to believe that intervention would be required to protect its alleged interest in the tract of land since condemnation of the property seemed to effectuate the intent of Congress as manifested in a series of National Lakeshore expansion bills. Moreover, there had been neither a trial nor an extensive exchange of pleadings. Thus, the intervention motion was timely. However, petitioner failed to show an interest in the land that was legally protectable as required by Fed. R. Civ. P. 24(a)(2). To allow intervention at this point in time to a party with no legal interest in the private property that was the subject of the proceeding and whose position was contrary to that of both the original parties, would serve no viable purpose except to prolong an already lengthy and tired lawsuit.

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