Idaho Judge Denies Residents’ Motion to Intervene in AT&T Cell Tower Fight

U.S. District Judge Amanda Brailsford for Idaho in Coeur d'Alene denied the motion of the 250-resident Potlatch Hill Neighborhood Group and five individual neighbors to intervene in defense of Kootenai County’s February denial of AT&T’s application to build a wireless communication tower, said Brailsford’s memorandum decision and order Thursday (docket 2:23-cv-00124).

AT&T alleges the county’s denial was an unlawful prohibition of service under the Telecommunications Act, and said the denial wasn’t based on substantial evidence, as the TCA requires. AT&T also alleges the county’s failure to take action on the application until more than 150 days after submission of the completed application violated federal shot clock rules. AT&T opposes the motion to intervene, though it concedes that the motion is timely. The county has filed a statement of non-opposition.

The Federal Rules of Civil Procedure permit a party to intervene as of right under Rule 24(a) and permissively under Rule 24(b), said the order. Rule 24(a) requires that party to pass a four-part test to qualify as an intervenor, it said. Permissive intervention under Rule 24(b) “requires only that the proposed intervener have a question of law or fact in common with the underlying action,” it said.

Potlatch Hill and the individual proposed intervenors “have shown that they played an important role” in convincing the county to reconsider its decision approving the AT&T application before ultimately denying it, said the order. But their motion to intervene as a matter of right fails because they haven’t shown that the county won’t “adequately represent” their interests, it said. They argue that their participation in the lawsuit is necessary because it’s not unreasonable to assume that the county won’t go back to its original position when it approved the AT&T application. But the court “is not convinced by this argument,” said the order.

Though intervention as of right doesn’t require an absolute certainty that a party’s interests will be impaired or that existing parties won’t adequately represent its interests, it does require a “compelling showing” that the county “is an inadequate representative for Potlatch Hill’s interests,” said the order. Potlatch hasn’t “made that showing,” it said.

The judge also found that permissive intervention “is not warranted in this case,” said her order. Though the court finds Potlatch Hill “meets all the requirements for permissive intervention,” its participation “may expand the scope of the proceedings, resulting in delay,” it said.

Even if Potlatch Hill’s participation wouldn’t delay or prejudice the proceedings, the court “would still deny the request for permissive intervention for the same reason it denied Potlatch Hill’s application to intervene as a matter of right,” said the order. Potlatch Hill’s and the county’s interests are identical, and the county “can adequately represent those interests,” it said.