Fed. Dist. Court in ID Denies Neighborhood Group’s Motion to Intervene in Dispute over Wireless Communication Tower

This post was authored by Gabriella Mickel, Pace University Elisabeth S. Haub School of Law

In June 2022, AT&T applied for a CUP in Kootenai County to construct a 150-foot wireless facility. Public hearings held in August and September 2022 saw opposition from the Potlatch Hill Neighborhood Group and others, raising concerns including visual intrusions, aesthetics, dangers associated with lightning strikes, the inadequacy of existing roads and other infrastructure to handle construction and operation of the town, increased light noise, reductions in the values of nearby properties, the adequacy of existing communication services, and potential alternative sites. The County Commissioners initially approved the CUP in October 2022 but later reversed their decision in February 2023 after reconsideration hearings. In response, AT&T filed a lawsuit in March 2023. Potlatch Hill Neighborhood Group and individuals filed a Motion to Intervene in the lawsuit.

The court considered the Federal Rules of Civil Procedure for intervention as of right under Rule 24(a) and permissive intervention under Rule 24(b). The Ninth Circuit has the following four-part test for intervention as of right:

(1) the application for intervention must be timely; (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 so situated that the disposition of the action may, as a practical matter, impair or impede the applicant’s ability to protect that interest; and (4) the applicant’s interest must not be adequately represented by the existing parties in the lawsuit.

Permissive intervention under Rule 24(b) requires only that the proposed intervenor have a question of law or fact in common with the underlying action; the request be timely made; and the court has an independent basis for jurisdiction over the proposed intervener’s claims.

Intervention as of Right: AT&T argued that Potlatch Hill did not have a significantly protectable interest relating to the property or transaction and that it could not establish the County would not adequately represent its interests. The court found that Potlatch Hill met the protectable interest requirement, as public interest groups have an interest in challenging the legality of measures they support. However, the court also found that Potlatch Hill’s application failed to demonstrate inadequate representation by the County. The court noted that Potlatch Hill needed to make a “very compelling showing” because: (1) a governmental entity—the County—is already acting on behalf of its interests in this action; and (2) the County and Potlatch Hill share the same ultimate objective of defending and upholding the County’s decision denying AT&T’s application to construct and operate a wireless facility.

Permissive Intervention: The court determined Potlatch Hill met requirements for permissive intervention, but found its participation might expand the scope of the proceedings and lead to delay. Given the expedited track agreed by the parties, any potential expansion or delay was a concern. Additionally, as the County could adequately represent Potlatch Hill’s interests, the court saw no need for permissive intervention.Thus, the court denied the Motion to Intervene.

New Cingular Wireless PCS, LLC v Kootenai County, Idaho, 2023 WL 7283153 (D. Idaho 11/7/2023)