Case 2:19-cv-01105-JCC Document 23 Filed 10/18/19 Page 1 of 6 The Honorable John C. Coughenour 1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6 7 8 DISCOVERY PARK COMMUNITY ALLIANCE, et al., 11 vs. CITY OF SEATTLE, 12 Respondent. 13 I. 14 CITY OF SEATTLE’S REPLY REGARDING ITS MOTION TO JOIN THE U.S. ARMY AND SEATTLE PUBLIC SCHOOLS AS RESPONDENTS Petitioners, 9 10 No. 2:19-cv-1105-JCC NOTE ON MOTION CALENDAR: Friday October 18, 2019 INTRODUCTION Because Petitioners do not object to the joinder of the U.S. Army as a necessary party 15 under the Land Use Petition Act (“LUPA”), this Court should grant the City’s motion as to the 16 Army. See Dkt. # 20 at p. 1:21-22 (Response). 17 Seattle Public Schools (“SPS”) is a necessary party under Fed. R. Civ. P. 19(a) because: 18 the Petition levels claims specifically at SPS, which should be allowed to defend its interests 19 directly without having to rely on the City; and this Court cannot accord complete relief without 20 SPS. Because Petitioners’ claims to the contrary lack merit, this Court should grant the City’s 21 motion as to SPS. 22 23 CITY’S REPLY REGARDING ITS MOTION TO JOIN NECESSARY PARTIES - 1 DISCOVERY PARK COMM. ALLIANCE V. CITY OF SEATTLE, NO. 2:19-CV-1105 Peter S. Holmes Seattle City Attorney 701 Fifth Ave., Suite 2050 Seattle, WA 98104-7095 (206) 684-8200 Case 2:19-cv-01105-JCC Document 23 Filed 10/18/19 Page 2 of 6 II. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 A. ARGUMENT The Petition’s SPS-specific claims demonstrate SPS is a necessary party under Fed. R. Civ. P. 19(a). The City has demonstrated SPS is a necessary party under Fed. R. Civ. P. 19(a). The Petition levels claims specifically at SPS. For example, the Petition asserts SPS: is disqualified from seeking Ft. Lawton property (Dkt. # 1-2 at p. 13:9-12); intends to build a school on the Ft. Lawton property and is using the prospect of joint-use playfields to avoid required environmental review (id. at 9:17-20, 14:4-15); and impermissibly took final project action and proceeded with the City before completing other review. Id. at 14:16 – 15:2. It is not enough for Petitioners now to say they “are not challenging any action or involvement by the Seattle Public Schools,” Dkt. # 20 at p. 5:23 (Response), or the “Petitioners’ action does not wish to impact the Seattle Public Schools.” Id. at 5:17-18. The Petition proves otherwise. SPS has an interest in defending its ability to seek surplus Ft. Lawton property. That interest is memorialized in SPS’s 2017 agreement with the City, see Dkt. # 17-1, and the prospective SPS-City agreement the City Council authorized and Petitioners challenge. See Dkt. # 1-2 at pp. 37-41 (Ord. 125841 without attachment); Dkt. # 17-2 (attachment to Ord. 125841). Just like all parties affected by a contract are necessary to an action seeking to set it aside, SPS is a necessary party to Petitioners’ action to undercut one SPS-City agreement and prevent another. See Lomayaktewa v. Hathaway, 520 F.2d 1324, 1325 (9th Cir. 1975) (“No procedural principle is more deeply imbedded in the common law than that, in an action to set aside a lease or a contract, all parties who may be affected by the determination of the action are indispensable.”). B. SPS had no reason to participate in the administrative proceeding below. SPS’s absence from the administrative proceedings below is irrelevant. Cf. Dkt. # 20 at pp. 2:6-7, 3:13, 4:3, and 4:7-8 (Response). In their appeal of the Ft. Lawton project CITY’S REPLY REGARDING ITS MOTION TO JOIN NECESSARY PARTIES - 2 DISCOVERY PARK COMM. ALLIANCE V. CITY OF SEATTLE, NO. 2:19-CV-1105 Peter S. Holmes Seattle City Attorney 701 Fifth Ave., Suite 2050 Seattle, WA 98104-7095 (206) 684-8200 Case 2:19-cv-01105-JCC Document 23 Filed 10/18/19 Page 3 of 6 1 environmental impact statement (“EIS”) before the City of Seattle Hearing Examiner, Petitioners 2 claimed the EIS was inadequate for several reasons, including how it addressed playfield 3 improvements contemplated by SPS for the Ft. Lawton site. Declaration of Patrick Downs in 4 Support of the City of Seattle’s Motion to Join the U.S. Army and Seattle Public Schools as 5 Respondents, Exhibit 1 (Notice of Appeal) at 8:23 – 9:2. SPS did not need to participate—at 6 issue was the City’s EIS, which the City had the incentive and responsibility to defend. Id., 7 Exhibit 2 (Findings and Decision of the Hearing Examiner). Petitioners did not raise before the 8 Examiner the SPS-specific claims they later included in their Petition. 9 10 C. The case law Petitioners’ invoke is unavailing. The fact-bound decisions Petitioners invoke are distinguishable. See Dkt. # 20 at pp. 4-5 11 (Response). Cathcart-Maltby does not support Petitioners’ claim that this “is not the place or 12 time for [SPS] to become involved.” Resp at 5:3-6 (citing Cathcart-Maltby-Clearview 13 Community Council v. Snohomish Cnty, 96 Wn.2d 201, 201-206, 634 P.2d 853 (1981)). 14 Resolving a pre-LUPA land use dispute, Cathcart-Maltby ruled that mortgagees and 15 beneficiaries to deeds of trust were not indispensable parties because their interests were 16 represented by the named owners and developers. Id., 96 Wn.2d at 206-07. See 1995 Wash. 17 Laws, ch. 347, §§ 701 et seq. (enacting LUPA). SPS has a documented interest in obtaining 18 Ft. Lawton property—an interest Petitioners assail and the City, an arms-length partner with 19 SPS, will not necessarily defend. 20 Ohio Valley Environmental is distinguishable for the same reason—it ruled a District 21 Court did not abuse its discretion when finding a missing party was unnecessary because its 22 interests were identical to the named parties’ interests. Ohio Valley Environmental Coalition v. 23 CITY’S REPLY REGARDING ITS MOTION TO JOIN NECESSARY PARTIES - 3 DISCOVERY PARK COMM. ALLIANCE V. CITY OF SEATTLE, NO. 2:19-CV-1105 Peter S. Holmes Seattle City Attorney 701 Fifth Ave., Suite 2050 Seattle, WA 98104-7095 (206) 684-8200 Case 2:19-cv-01105-JCC Document 23 Filed 10/18/19 Page 4 of 6 1 Bulen, 429 F.3d 493, 504-05 (4th Cir. 2005). The City’s and SPS’s interests may be aligned, but 2 they differ. NAACP noted “that in suits to compel federal agencies to obey the law the countless 3 4 people or entities who would be effected thereby do not become necessary parties.” NAACP v. 5 Donovan, 558 F. Supp. 218, 223 (D.D.C. 1982). SPS is necessary because of Petitioners’ SPS- 6 specific claims. 7 Salt Lake Tribune determined a party not subject to a contested agreement was 8 unnecessary when complete relief could be accorded among the actual parties and where the 9 court could fashion relief that would protect the absent parties’ interests. Salt Lake Tribune 10 Publishing Co. v. AT&T Corp., 320 F.3d 1081, 1096-98 (10th Cir. 2001). That is untrue here, 11 where SPS, as an outside party, would not be bound by this Court’s resolution of Petitioners’ 12 SPS-specific claims. Petitioners also misread Hall, which, contrary to Petitioners’ suggestion, did not rule a 13 14 party who has not attempted to intervene under Rule 24 is per se unnecessary under Rule 19. See 15 Dkt. # 20 at p. 4:7-9 (Response citing Hall v. National Service Industries, Inc., 172 F.R.D 157, 16 159 (E.D. Pa. 1997)). 17 D. 18 Petitioners’ claims that SPS is unnecessary under LUPA miss the mark.1 The City does 19 not claim SPS is necessary under LUPA; only under Rule 19. Nothing in LUPA renders SPS unnecessary. Although the first sentence of 20 21 LUPA does not render SPS unnecessary. RCW 36.70C.050 says a property owner (the Army in this case) is a necessary party, the rest of 22 23 1 The City reserves the right to argue LUPA is an improper vehicle for pursuing the relief Petitioners seek. CITY’S REPLY REGARDING ITS MOTION TO JOIN NECESSARY PARTIES - 4 DISCOVERY PARK COMM. ALLIANCE V. CITY OF SEATTLE, NO. 2:19-CV-1105 Peter S. Holmes Seattle City Attorney 701 Fifth Ave., Suite 2050 Seattle, WA 98104-7095 (206) 684-8200 Case 2:19-cv-01105-JCC Document 23 Filed 10/18/19 Page 5 of 6 1 that section discusses the prospect of joining other parties needed for just adjudication. 2 RCW 36.70C.050 (discussing joinder of other parties that “may be needed for just adjudication 3 of the petition”). The Civil Rules govern procedural matters to the extent not inconsistent with 4 LUPA. RCW 36.70C.030(2). Rule 19 is consistent with LUPA. 5 In any event, the Petition alleges causes of action beyond LUPA, so LUPA does not 6 dictate the scope of necessary parties. See Dkt. # 1-2 at pp. 22:13 - 23:19 (Petition raising causes 7 of action for a writ and under the Declaratory Judgments Act). III. 8 9 CONCLUSION The parties agree the Army should be joined as a respondent. This Court should also 10 order Petitioners to join SPS so it may defend directly against the Petition’s SPS-specific claims. 11 The City respectfully asks the Court to order Petitioners to timely file and serve an amended 12 petition naming the Army and SPS as respondents. 13 14 15 16 17 18 19 20 Dated October 18, 2019. PETER S. HOLMES Seattle City Attorney By: s/Patrick Downs, WSBA # 25276 s/Roger D. Wynne, WSBA #23399 Assistant City Attorneys Seattle City Attorney’s Office 701 Fifth Avenue, Suite 2050 Seattle, WA 98104-7097 Ph: (206) 684-8200 Fax: (206) 684-8284 E-mail: patrick.downs@seattle.gov roger.wynne@seattle.gov Attorneys for Respondent City of Seattle 21 22 23 CITY’S REPLY REGARDING ITS MOTION TO JOIN NECESSARY PARTIES - 5 DISCOVERY PARK COMM. ALLIANCE V. CITY OF SEATTLE, NO. 2:19-CV-1105 Peter S. Holmes Seattle City Attorney 701 Fifth Ave., Suite 2050 Seattle, WA 98104-7095 (206) 684-8200 Case 2:19-cv-01105-JCC Document 23 Filed 10/18/19 Page 6 of 6 1 CERTIFICATE OF SERVICE 2 I certify that on this day I electronically filed this document and Declaration of Patrick 3 Downs in Support of the City of Seattle’s Motion to Join the U.S. Army and Seattle Public 4 Schools as Respondents with the Clerk of the Court using the CM/ECF system which will send 5 notification of such filing to: 6 7 8 9 Allen T. Miller, WSBA # 12936 Law Offices of Allen T. Miller, PLLC 1801 West Bay Drive NW Olympia, WA 98502 Phone: 360-754-9156 Email: allen@atmlawoffice.com Attorney for Petitioners 10 I also certify that on this day I sent a copy of this document via e-mail to the same 11 individual and to mmoc@atmlawoffice.com, lisa@atmlawoffice.com, and 12 andrea@atmlawoffice.com. 13 Dated this October 18, 2019, at Seattle, Washington. 14 15 s/Alicia Reise_________________ ALICIA REISE, Legal Assistant 16 17 18 19 20 21 22 23 CITY’S REPLY REGARDING ITS MOTION TO JOIN NECESSARY PARTIES - 6 DISCOVERY PARK COMM. ALLIANCE V. CITY OF SEATTLE, NO. 2:19-CV-1105 Peter S. Holmes Seattle City Attorney 701 Fifth Ave., Suite 2050 Seattle, WA 98104-7095 (206) 684-8200