Administrative – Intervention of Rights – Permissive Intervention

Appellants Randal and Tamara Dunn were not entitled to permissive intervention because there was no common question of law or fact between the contested case and the Dunns’ asserted interest.

We affirmed the order of the superior court.

Appellants The Umstead Coalition and Randal and Tamara Dunn wish to challenge the issuance of a mining permit to Wake Stone Corporation. To accomplish this, they moved to intervene in a contested case hearing between Wake Stone and the North Carolina Department of Environmental Quality, Division of Energy, Mineral, and Land Resources. Appellants’ motions were denied in the administrative proceeding, and their appeal of that denial was affirmed by the Wake County Superior Court. Appellants appealed the superior court’s order in its entirety, arguing they should have been allowed to intervene as parties, that the case is not moot, and that the Administrative Law Judge (ALJ) erred in reversing the Division’s denial of the permit.

Rule 24 of our Rules of Civil Procedure governs intervention of parties. Rule 24(a)(2) provides that an applicant shall be permitted to intervene if he claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties. Our Supreme Court interprets Rule 24 to require a putative intervenor to “show that (1) it has a direct and immediate interest relating to the property or transaction, (2) denying intervention would result in a practical impairment of the protection of that interest, and (3) there is inadequate representation of that interest by existing parties.” Virmani v. Presbyterian Health, 350 N.C. 449, 459 (1999). To show a “direct and immediate interest,” the putative intervenor must prove “he will either gain or lose by the direct operation and effect of the judgment[.]” Strickland v. Hughes, 273 N.C. 481, 485 (1968). “[A]n indirect, inconsequential, or a contingent” interest is not sufficient. Id. Rule 24(b)(2) provides for permissive intervention “[w]hen an applicant’s claim or defense and the main action have a question of law or fact in common.” N.C.G.S. § 1A-1, Rule 24(b)(2). Permissive intervention is a matter of the court’s discretion, considering “whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.”

Among other things, the Dunns moved to intervene under both Rules 24(a)(2) and 24(b)(2). As to Rule 24(a)(2), the superior court found the Dunns failed to show a “direct and immediate interest” because the Dunns’ basis for challenging the mining permit was not the same as that of the Division. The Division denied Wake Stone’s permit application under N.C.G.S. § 74-51(d)(5), which allows denial based on “a significantly adverse effect on the purposes of a publicly owned park, forest or recreation area.” As this was the sole basis for the Division’s denial, Wake Stone’s effect on the purposes of Umstead Park—namely, conservation, recreation, and education—was the only interest at issue in the contested case hearing. The Dunns, however, applied to intervene to challenge the permit application pursuant to N.C.G.S. § 74-51(d)(4), which allows denial based on “a direct and substantial physical hazard to . . . a neighboring dwelling house.” Therefore, the ALJ found, and the superior court affirmed, that the Dunns were not entitled to intervene because they did not allege a direct and immediate interest.

The trial court did not err. While intervenors are free to introduce new issues beyond the scope of the original case once they become a party, this rule does not extend to putative intervenors. As the Dunns were not yet parties to the contested case hearing, any interest warranting intervention under Rule 24(a)(2) must have been at issue at the time of their motion to intervene. The Dunns’ interest in the case—the potential physical hazard posed to their home—was properly identified as an indirect interest in the dispute between Wake Stone and the Division because it did not relate to the mining operation’s effect on Umstead Park.

As to Rule 24(b)(2), the ALJ determined, and the superior court affirmed, the Dunns were not entitled to permissive intervention because there was no common question of law or fact between the contested case and the Dunns’ asserted interest. We agreed. The denial criteria raised by the Division and the Dunns—adverse effect on the purposes of Umstead Park and physical hazard to the Dunns’ house—are distinct legal questions involving substantially different factual inquiries. There is no basis for finding the ALJ reached his decision arbitrarily.

Affirmed.

North Carolina Department of Environmental Quality, Division of Energy, Mineral, and Land Resources (Lawyers’ Weekly No. 011-152-25, 10 pp.) (Chris Dillon, J.) Appealed from Wake County Superior Court (Gale M. Adams, J.) Calhoun, Bhella & Sechrest, LLP, by James L. Conner, II and Shannon M. Arata, for petitioners-appellants The Umstead Coalition, Randal Dunn, and Tamara Dunn. Ward & Smith, P.A., by A. Charles Ellis and Hayley R. Wells, for respondentappellee Wake Stone Corporation. Attorney General Jeff Jackson, by Assistant Attorney General Carolyn McLain and Assistant Attorney General Kyle Peterson, for petitioner-appellee North Carolina Department of Environmental Quality. North Carolina Court of Appeals