Cnty. of Orange v. Air California, 799 F.2d 535 (9th Cir. 1986). · Go Syfert
Cnty. of Orange v. Air California, 799 F.2d 535 (9th Cir. 1986). Cases Citing This Book View Copy Cite
Quick Summary

A motion to intervene as a matter of right is untimely if filed after the parties have reached a settlement agreement following protracted litigation.

A municipality sought to intervene as a matter of right and permissively in a long-standing environmental litigation regarding airport development after the primary parties reached a settlement agreement. The district court denied the motion for intervention. In determining whether the motion was timely, the court considers the stage of the proceeding, the prejudice to other parties, and the reason for the delay. Because the municipality waited until after a settlement was reached following five years of litigation, and because the settlement could be undermined by late intervention, the motion was untimely. The court held that a party seeking to protect its interests should join negotiations before a suit is settled.

230 citation events (134 in the last 25 years) across 25 distinct courts.
Treatment trajectory · 1986 → 2026 · click a year to view as-of
1986 2006 2026
Cited for
At page 537 Determining timeliness of motion to intervene49 citing cases“(1) the stage of the proceeding at which an applicant seeks to intervene; (2) the prejudice to other parties; and (3) the reason for and length of the delay.”11 citing courts quote it · 44 listed here
  • Louis D. Brandeis Ctr., Inc. v. Regents of the Univ. of California, No. 3:23-cv-06133 (N.D. Cal. Oct. 25, 2024). 2 cites
    (Mere lapse of time alone is not 23 determinative.)
  • United States ex rel. McGough v. Covington Tech. Co., 967 F.2d 1391 (9th Cir. 1992).published 7 cites
    See also Air California, 799 F.2d at 538 ("In evaluating [prejudice], courts have emphasized the seriousness of the prejudice which results when relief from long-standing inequities is delayed"). 35 c.
  • Clear Blue Specialty Ins. Co. v. OZY MEDIA, INC., No. 5:21-cv-08764 (N.D. Cal. Nov. 3, 2023). 2 cites
    “mere lapse of time alone is not 3 determinative.”
  • Sevag Chalian v. CVS Pharmacy, Inc, No. 20-55916 (9th Cir. June 6, 2025).unpublished 2 cites
    See United States v. Alisal Water Corp., 370 F.3d 915, 922 (9th Cir. 2004) (denying intervention after the case was litigated for four years and proposed intervenor was “keenly aware of the litigation”); Orange Cnty., 799 F.2d at 538 (deny…
  • John Muir Proj. of Earth Island Inst. v. U.S. Forest Serv., No. 2:24-cv-00909 (E.D. Cal. Nov. 12, 2024).
    Timeliness of Application 4 In determining whether a motion is timely, the Court considers: (1) the stage of the 5 proceeding; (2) any prejudice to the other parties; and (3) the reason for and length of any delay. 6 Orange Cty., 799 F.2d…
  • Alex Rosas v. Leroy Baca, No. 2:12-cv-00428 (C.D. Cal. Sept. 12, 2023). 3 cites
    Orange 23 County v. Air California, 799 F.2d 535 , 538 (9th Cir. 1986), for 24 example, involved a municipality’s attempt to intervene in 25 litigation between a county government and a collection of 26 citizens’ groups and private busines…
  • Lin v. Suavei, Inc., No. 3:20-cv-00862 (S.D. Cal. Feb. 9, 2023).
    (fact that proposed intervenor waited until all the 9 parties had come to an agreement after five years of litigation weighed heavily against 10 intervention)
  • Eagle Bear Inc. v. Blackfeet Indian Nation, No. 4:22-cv-00093 (D. Mont. Dec. 1, 2022).
    Citizens v. Wilson, 131 F.3d 1297 , 1302 (9th Cir. 1997) (citing County of Orange v. Air California, 799 F.2d 535, 537 (9th Cir. 1986)).
  • Backcountry Against Dumps v. Bureau of Indian Affairs, No. 3:20-cv-02343 (S.D. Cal. June 14, 2021).
    “has asserted an interest relating to the property or transaction which is 11 the subject of the action”
  • Retiree Support Grp. v. Contra Costa Cnty., 315 F.R.D. 318 (N.D. Cal. 2016).published 2 cites
    Courts consider three factors when determining whether a motion to intervene is timely: “(1) the stage of the proceeding at which an applicant seeks to intervene; (2) the prejudice to other parties; and (3) the reason for and length of the…
Show 34 more citing cases
At page 538 Evaluating prejudice in motions to intervene after settlement32 citing cases“permissive intervention is committed to the broad discretion of the district court.”6 citing courts quote it
  • Louis D. Brandeis Ctr., Inc. v. Regents of the Univ. of California, No. 3:23-cv-06133 (N.D. Cal. Oct. 25, 2024). 2 cites
    “Permissive intervention is committed to the broad discretion of the district 2 court.”
  • Forsyth v. HP Inc., No. 5:16-cv-04775 (N.D. Cal. Jan. 7, 2020). 2 cites
    “Permissive 22 intervention is committed to the broad discretion of the district court . . . .”
  • United States ex rel. McGough v. Covington Tech. Co., 967 F.2d 1391 (9th Cir. 1992).published 7 cites
    (In evaluating [prejudice], courts have emphasized the seriousness of the prejudice which results when relief from long-standing inequities is delayed)
  • Alaska Forest Ass'n v. U.S. Dep't of Agric., No. 3:25-cv-00046 (D. Alaska Aug. 7, 2025).
    “permissive intervention is committed to the broad discretion of the district court.”
  • In re Accellion, Inc. Data Breach Litig., No. 5:21-cv-01155 (N.D. Cal. Feb. 10, 2023).
    “permissive 21 intervention is committed to the broad discretion of the district court . . . .”
  • Sullivan v. Ferguson, No. 3:22-cv-05403 (W.D. Wash. Oct. 18, 2022).
    “our conclusion that the district court did not abuse its 24 1 discretion in denying irvine's motion to intervene as a matter of right due to its untimeliness 2 applies equally here.”
  • Cochran v. Accellion, Inc., No. 5:21-cv-01887 (N.D. Cal. Nov. 5, 2021).
    “permissive 9 intervention is committed to the broad discretion of the district court . . . .”
  • Forsyth v. HP Inc., No. 5:16-cv-04775 (N.D. Cal. Aug. 21, 2020). 2 cites
    “permissive 24 intervention is committed to the broad discretion of the district court... .”
  • Brown v. Salcido, No. 24-5692 (9th Cir. Apr. 20, 2026).published
    Id. at 538.
  • Burnes v. Hawaiian Elec. Co., 583 P.3d 794 (Haw. 2026).published
    (allowing intervention after the City of Irvine learned the outcome “would not be entirely to its liking,” and “undoing . . . five years of protracted litigation” would prejudice the parties)
Show 22 more citing cases
At page 539 Reviewing permissive intervention and timeliness standards9 citing casesPermissive intervention is committed 13 to the broad discretion of the district court... .1 citing court put it this way
  • Forsyth v. HP Inc., No. 5:16-cv-04775 (N.D. Cal. Jan. 7, 2020). 2 cites
    (Permissive intervention is committed 13 to the broad discretion of the district court... .)
  • FTC v. Jacques Poujade, No. 19-56397 (9th Cir. Dec. 7, 2020).unpublished
    Id. at 539.
  • E&B Nat. Resources Mgmt. Corp. v. Cnty. of Alameda, No. 4:18-cv-05857 (N.D. Cal. Nov. 4, 2019).
    League of Latin Am. Citizens, 26 131 F.3d at 1308 (citing Orange Cty. v. Air California, 799 F.2d 535, 539 (9th Cir. 1986)). 27 Here, as discussed above, timeliness is not an issue.
  • Educ. Credit Mgmt. Corp. v. Bernal (In Re Bernal), 223 B.R. 542 (B.A.P. 9th Cir. 1998).published
    County of Orange v. Air California, 799 F.2d 535, 539 (9th Cir.1986), cert. denied, 480 U.S. 946 , 107 S.Ct. 1605 , 94 L.Ed.2d 791 (1987).
  • United States v. Brooks, 163 F.R.D. 601 (D. Or. 1995).published
    County of Orange v. Air California, 799 F.2d 535, 539 (9th Cir.1986), cert. denied, 480 U.S. 946 , 107 S.Ct. 1605 , 94 L.Ed.2d 791 (1987); see also Venegas v. Skaggs, 867 F.2d 527, 530-31 (9th Cir.1989) (in deciding whether to grant or den…
  • Officers for Just. v. City & Cnty. of San Francisco, 52 F.3d 334 (9th Cir. 1995).unpublished
    County of Orange v. Air California, 799 F.2d 535, 539 (9th Cir.1986), cert. denied, 480 U.S. 946 (1987). 6 22 Even assuming Zimmerman has met all of Rule 24(b)'s prerequisites, the district court did not abuse its discretion in barring his…
  • United States v. State Of Oregon, 913 F.2d 576 (9th Cir. 1990).published
  • United States v. Oregon, 913 F.2d 576 (9th Cir. 1990).published
  • Ambler v. Flathead Conservation Dist., No. 9:23-cv-00151 (D. Mont. May 28, 2024).
Permissive intervention is committed to the broad discretion of the district court[.]no pin page on record · 4 citing cases listed
  • Alaska Forest Ass'n v. U.S. Dep't of Agric., No. 3:25-cv-00046 (D. Alaska Aug. 7, 2025).
    (Permissive intervention is committed to the broad discretion of the district court[.])
  • In re Accellion, Inc. Data Breach Litig., No. 5:21-cv-01155 (N.D. Cal. Feb. 10, 2023).
    (Permissive 21 intervention is committed to the broad discretion of the district court . . . .)
  • Cochran v. Accellion, Inc., No. 5:21-cv-01887 (N.D. Cal. Nov. 5, 2021).
    (Permissive 9 intervention is committed to the broad discretion of the district court . . . .)
  • Forsyth v. HP Inc., No. 5:16-cv-04775 (N.D. Cal. Aug. 21, 2020). 2 cites
    (Permissive 24 || intervention is committed to the broad discretion of the district court... .)
At page 536 cited at this page2 citing cases
  • Alex Rosas v. Leroy Baca, No. 2:12-cv-00428 (C.D. Cal. Sept. 12, 2023). 3 cites
    Orange 23 County v. Air California, 799 F.2d 535 , 538 (9th Cir. 1986), for 24 example, involved a municipality’s attempt to intervene in 25 litigation between a county government and a collection of 26 citizens’ groups and private busines…
  • California Chamber of Com. v. Cert, 51 F.4th 1182 (9th Cir. 2022).published
    However, neither case and neither law cited by the panel justifies a federal court’s decision to enjoin a non-labor lawsuit using the NLRB-protective “illegal objective” doctrine, especially when no appellate court has done so before. 4 Or…
Retrieving the full opinion text from the archive…
COUNTY OF ORANGE
v.
AIR CALIFORNIA American Airlines America West Airlines Continental Airlines, Inc. Frontier Airlines, Inc. Jet America Pacific Southwest Airlines Republic Airlines, Inc. Western Airlines, Inc. Alaska Airlines, Inc. Muse Air Corporation Trans World Airlines, Inc. United Airlines, Inc. Federal Aviation Administration McDonnell-Douglas Corporation City of Newport Beach Stop Polluting our Newport Corporation Airport Working Group of Orange County, Inc., City of Irvine, Applicant for Intervention-Appellant
No. 85-6501.
Court of Appeals for the Ninth Circuit.
Sep 9, 1986.
Published opinion
799 F.2d 535
1986 U.S. App. LEXIS 29213
Michael Scott Gatzke, Gatzke, Lodge & Mispagel, Carlsbad, Cal., Josephine E. Powe, Los Angeles, Cal, E. Clement Shute, Jr., San Francisco, Cal., for plaintiff-appel-lee., John E. McDermott, Memel, Jacobs, Pierno, Gersh & Ellsworth, Los Angeles, Cal., for defendants-appellees.
Anderson.
Cited by 40 opinions  |  Published
8 passages pin-cited by 8 cases
Citer courts: N.D. California (6) · D. Alaska (1) · W.D. Washington (1)
J. BLAINE ANDERSON, Circuit Judge:

The City of Irvine (Irvine) appeals from a district court order denying a motion to intervene as a matter of right, Fed.R.Civ.P. 24(a)(2), and denying a motion to intervene permissively, Fed.R.Civ.P. 24(b)(2). We affirm.

I. FACTS

On February 26, 1985, the County of Orange (Orange County) approved and adopted a plan (the Airport Project Plan) for the future development of commercial airline activity at John Wayne Airport (JWA). Prior to adoption of the Airport Project Plan, and pursuant to the requirements of the California Environmental Quality Act (CEQA) and the National Environmental Policy Act (NEPA), a study was prepared by Orange County and the Federal Aviation Administration concerning the proposed environmental effects of the Airport Project Plan (this study is hereinafter referred to as EIR 508/EIS). Orange County certified that EIR 508/EIS was legally adequate under CEQA.

Due to the fact that there was interrelated litigation pending before both state and federal courts challenging the Airport Project Plan and the adequacy of EIR 508/EIS, Orange County filed an action seeking a declaratory judgment as to the lawfulness and adequacy of the Airport Project Plan and EIR 508/EIS and requesting the court to enjoin the City of Newport Beach and others from litigating the CEQA[*537] issues in state court. Orange County named as defendants 13 airlines, an aircraft manufacturer, the City of Newport Beach (Newport) located adjacent to JWA, and several citizens’ groups generally opposed to any increase in operations at JWA.

The district court granted a temporary restraining order and subsequently issued a preliminary injunction preventing Newport and the citizens’ groups from filing new CEQA actions in state court. Consequently, those parties filed counterclaims against Orange County. The counterclaims alleged violations of CEQA and sought to enjoin Orange County from increasing the number of flights at JWA, constructing the new passenger terminal, or otherwise implementing the Airport Project Plan.

In the spring of 1985, Orange County, Newport, and the citizens’ groups began negotiating a settlement. The progress of the negotiations was chronicled by the press. In August, 1985, the parties agreed to a proposed settlement. Irvine claims it became aware of the proposed settlement on or about August 20, 1985. On September 18, 1985, the district court was told of the tentative agreement. On September 20, 1985, Irvine filed a motion to intervene as a matter of right and permissively. Irvine’s motion was argued on October 21, 1985, and the district court denied the motion in a final order issued October 28, 1985. The proposed settlement agreement was formally submitted to the court for approval on November 18, 1985. On December 13, 1985, the district court entered a judgment in accordance with the Stipulation for Entry of Judgment by Certain Settling Parties.

II. DISCUSSION

A. Intervention as a Matter of Right

1. Standard of Review

The district court’s denial of a party’s motion to intervene as a matter of right is reviewed de novo, United States v. Stringfellow, 783 F.2d 821, 825 (9th Cir.), cert. granted on other grounds, sub. nom. Stringfellow v. Concerned Neighbors in Action, — U.S. -, 106 S.Ct. 2273, 90 L.Ed.2d 717 (1986); United States v. $129,374 in U.S. Currency, 769 F.2d 583, 585 (9th Cir.1985), cert. denied, — U.S. -, 106 S.Ct. 863, 88 L.Ed.2d 901 (1986), except for the issue of timeliness, which is reviewed for abuse of discretion. NAACP v. New York, 413 U.S. 345, 366, 93 S.Ct. 2591, 2603, 37 L.Ed.2d 648 (1973); $129,374 in U.S. Currency, 769 F.2d at 585.

2. Discussion

A four-part test has been adopted by this circuit to determine whether applications for intervention as a matter of right pursuant to Rule 24(a)(2) should be granted:

An order granting intervention as of right is appropriate if (1) the applicant’s motion is timely; (2) the applicant has asserted an interest relating to the property or transaction which is the subject of the action; (3) the applicant is so situated that without intervention the disposition may, as a practical matter, impair or impede its ability to protect that interest; and (4) the applicant’s interest is not adequately represented by the existing parties.

Stringfellow, 783 F.2d at 826 (citing Sagebrush Rebellion, Inc. v. Watt, 713 F.2d 525, 527 (9th Cir.1983); County of Fresno v. Andrus, 622 F.2d 436, 438 (9th Cir.1980)).

a. Timeliness

We find that the district court’s denial of Irvine’s motion to intervene as a matter of right because the motion was untimely was not an abuse of discretion.

In determining timeliness, three factors are weighed: (1) the stage of the proceeding at which an applicant seeks to intervene; (2) the prejudice to other parties; and (3) the reason for and length of the delay. United States v. State of Oregon, 745 F.2d 550, 552 (9th Cir.1984). Mere lapse of time alone is not determinative. Id.

[*538] The district court held that “[t]here’s no doubt in my mind that the possibility of this settlement unraveling is so prejudicial that to allow the City of Irvine to intervene at this late date would be tantamount to disaster here....” This statement implicates the first two factors that must be weighed. First, Irvine’s motion was made only after a proposed, and as it turned out, final settlement had been reached by all the parties after five long years of litigation. In a similar case, this court found that a motion to intervene filed seventeen days after a consent decree had become effective was untimely. Alaniz v. Tillie Lewis Foods, 572 F.2d 657, 658 (9th Cir.), cert. denied, 439 U.S. 837, 99 S.Ct. 123, 58 L.Ed.2d 134 (1978). The consent decree had been preceded by extensive and well-publicized negotiations. Id. at 659. “Since the motion was filed after the consent decree was approved, the first factor [the stage of the proceeding] weighs heavily against [the intervenor].” Id. at 659. Although Irvine did intervene before the Stipulated Judgment was officially approved by the district court, the fact that Irvine waited until after all the parties had come to an agreement after five years of litigation should nevertheless weigh heavily against Irvine.

“In evaluating the second factor [prejudice to other parties], courts have emphasized the seriousness of the prejudice which results when relief from long-standing inequities is delayed.” Id. The district court felt that to allow Irvine to intervene “at this late date” would be the undoing of five years of protracted litigation finally resolved by the Stipulated Judgment. Clearly, this would prejudice the parties involved. Equally clear is the fact that the district court judge, who presided over the case from its inception, did not abuse his discretion in recognizing this potential for prejudice to the other parties if Irvine was allowed to intervene.

Thus, to prevail, Irvine must convincingly explain its delay in filing its motion to intervene. Irvine argues that it did not intervene sooner because it did not know until August 20,1985, the date it learned of the proposed Stipulated Judgment, that its interests were not being adequately represented by the original parties. In other words, this was allegedly the first time that Irvine realized that the end result of the protracted litigation would not be entirely to its liking. In Alaniz, the crux of the appellant’s argument was that they did not know the settlement decree would be to their detriment. We held that, surely, they should have known the risks of waiting. Alaniz, 572 F.2d at 659. “To protect their interests, appellants should have joined the negotiations before the suit was settled.” Id. In the case at bar, Irvine should have realized that the litigation might be resolved by negotiated settlement. The local newspapers reported the ongoing negotiations between the parties. Furthermore, Irvine should have contemplated that due to the serious existing facility constraints at JWA, a likely result of the negotiations would be an agreement to look to other facilities for help, including El Toro. In order to protect itself against this eventuality, Irvine should have intervened sooner.[1] The district court did not abuse its discretion in denying, because it was untimely, Irvine’s motion to intervene.

Because we conclude that Irvine’s motion to intervene was untimely, we need not reach the remaining elements of the test. Nevertheless, we wish to make clear that Irvine is not precluded by stare decisis, collateral estoppel, or res judicata from taking other action.

There is no stare decisis effect to any future proceedings Irvine may wish to bring because the product of the litigation at bar was a Stipulated Judgment made pursuant to a negotiated settlement effecting only the signing parties. See United States v. Allegheny-Ludlum Industries, [*539] 517 F.2d 826, 845-46 n. 21 (5th Cir.1975), cert. denied, 425 U.S. 944, 96 S.Ct. 1684, 48 L.Ed.2d 187 (1976) (consent decrees — products of negotiation rather than contested litigation — are not likely to carry stare decisis effects measurably adverse to the proposed intervention in any future proceedings).

Nor is there any res judicata or collateral estoppel effect that would impair Irvine’s ability to litigate its concerns in a future, separate action. See Madison Square Garden Boxing, Inc. v. Shavers, 562 F.2d 141, 143 (2d Cir.1977) (a judgment entered on stipulation is binding upon the consenting parties only). Furthermore, the Stipulated Judgment itself expressly states that: pursuant to Rule 54(b) of the Federal Rules of Civil Procedure, the judgment to be entered pursuant to this stipulation is a final judgment as to the claims between the settling parties.

B. Permissive Intervention

1. Standard of Review

Permissive intervention is committed to the broad discretion of the district court and is therefore reviewed by this court for abuse of discretion. United States v. $129,37b in U.S. Currency, 769 F.2d 583, 586 (9th Cir.1985).

2. Discussion

A motion for permissive intervention must also be timely. Our conclusion that the district court did not abuse its discretion in denying Irvine’s motion to intervene as a matter of right due to its untimeliness applies equally here.

AFFIRMED.

1

There is credible evidence in the record that Newport or the other defendants never fully represented Irvine’s interests and that Irvine should have recognized this much earlier and, thereby, intervened much sooner.