MISC 18-000596

March 19, 2019

Middlesex, ss.




Chapter 201 of the Acts of 1884 ("the 1884 Act") granted the towns of Concord, Acton, and Littleton particular rights to utilize Nagog Pond as a water supply. On November 8, 2018, Concord filed a complaint for declaratory relief concerning the continued applicability of the 1884 Act in light of the enactment of G.L. c. 21G, also known as the Water Management Act, in 1985. Concord named only the Littleton Water Department as a defendant in this action. On January 8, 2019, Acton and the Water Supply District of Acton ("the Water District") together filed a Partially Assented-To Motion to Intervene ("Motion to Intervene") (all parties assented to Acton's intervention, but Concord objected to the Water District's intervention). Following argument at a hearing held on March 14, 2019, the court allowed the motion as to Acton, but took the motion under advisement as it applies to the Water District. For the following reasons, the Water District's motion to intervene is DENIED.


I. Intervention as of Right

The Water District has first moved to intervene as of right pursuant to Mass. R. Civ. P. 24(a). Rule 24(a) allows a party to intervene as of right "when the applicant 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." Mass. R. Civ. P. 24(a)(2). [Note 1] As expressed at the hearing, this court has doubts as to whether the Water District possesses a legally cognizable interest in the instant controversy; nonetheless, it need not decide that issue today, as it is plain that the Water District's claimed interest is adequately represented by Acton.

"[W]hen the applicant for intervention and an existing party have the same interests or ultimate objectives in the litigation, the application should be denied unless a showing of inadequate representation is made." Massachusetts Fed'n of Teachers, AFT, AFL-CIO v. Sch. Comm. of Chelsea, 409 Mass. 203 , 206 (1991), quoting 3B Moore's Federal Practice par. 24.07[4] (2d ed. 1987). Where interests so converge, there is a presumption of adequate representation, and the burden is on the applicant to make "a compelling showing" of inadequacy. Id. "[A] different motive in pursuing the same ultimate goal does not constitute inadequate representation, as long as the party demonstrates the intent to litigate vigorously." Id. at 208. Examples of inadequate representation include adversity of interest, collusion with the opposing party, or a lack of diligence in litigation by the party with whom the applicant's interest converges. See Attorney Gen. v. Brockton Agr. Soc., 390 Mass. 431 , 435 (1983).

Here, there is no question that the Water District claims an interest in the litigation that is the same as that of Acton, and pursues the same ultimate goal. In their joint motion, Acton and the Water District largely do not present grounds for intervention that are particular to either party, but rather advance their arguments as a single unit. Indeed, they expressly acknowledge that "Acton's and the [Water District's] interests are closely aligned with respect to the issues presented in this litigation." Motion to Intervene at 6-7. In the single portion of the motion that describes the interest of the Water District discretely, it states that the Water District "has a direct and substantial interest in preserving the rights that the 1884 Act granted or reserved to Acton and Acton's inhabitants," Motion to Intervene at 4, because it acts on behalf of Acton's residents with regard to water supply.

At the hearing on the motion, Acton and the Water District again confirmed that their interests are functionally identical. When questioned by the court, the Water District was unable to identify an interest that was separate from that of Acton, and confirmed that both Acton and the Water District are interested in ensuring that Acton has an adequate supply of water. Likewise, when asked to describe the manner in which Acton's interest diverged from the Water District, counsel for Acton acknowledged that Acton's and the Water District's "interests are very much aligned."

As the Water District's claimed interests and objectives are aligned with those of Acton, it must make a "compelling showing" that Acton's representation will not be adequate. See Massachusetts Fed'n of Teachers, 409 Mass. at 206. It has not done so. There is no evidence of adversity of interest between Acton and the Water Department, collusion between Acton and Concord, or a lack of diligence on Acton's behalf. The Water District points to the knowledge and expertise it possesses, and Acton allegedly lacks, concerning the water supply in Acton and the legal framework of the Water Management Act. However, both Acton and the Water District conceded at the hearing that they are able to cooperate and communicate about the issues raised in this action whether or not the Water District is a party. In short, the Water District has failed to make "a compelling showing" that Acton's representation of its interests in this proceeding will be inadequate.

II. Permissive Intervention

Alternatively, the Water District seeks permissive intervention pursuant to Rule 24(b), which permits an applicant to intervene "when an applicant's claim or defense and the main action have a question of law or fact in common." Mass. R. Civ. P. 24(b). [Note 2] The court has "considerable discretion in deciding whether permissive intervention is appropriate." Com. v. Fremont Inv. & Loan, 459 Mass. 209 , 219 (2011); Mass. Fed'n of Teachers, 409 Mass. at 209 ("'Permissive intervention is wholly discretionary with the trial court,' and the decision of the trial court will be reversed only for clear abuse of discretion"). In analyzing a request for intervention under Rule 24(b), "[t]he judge must consider, however, whether allowing intervention might delay or prejudice the adjudication of the rights of the parties. Id. Additional parties inevitably result in delay in the proceedings as well as increased complexity." Massachusetts Fed'n of Teachers, 409 Mass. at 209, citing 3B Moore's Federal Practice par. 24.10[4] (2d ed. 1987). Here, where the Water District's claimed interest in the litigation is adequately represented by Acton and the addition of the Water District will likely result in delay and increased complexity, this court declines to exercise its discretion to grant the Water District's request for permissive intervention.For the foregoing reasons, the Water District's motion to intervene is DENIED.

By the Court.


[Note 1] The first category of Rule 24(a), which allows intervention "when a statute of the Commonwealth confers an unconditional right to intervene," is inapplicable to the present motion. Mass. R. Civ. P. 24(a)(1). The Water District has noted no statute expressly conferring such a right, and this court is aware of none.

[Note 2] Again, part (1) of the Rule, which allows intervention "when a statute of the Commonwealth confers a conditional right to intervene," is inapplicable to the present motion. Mass. R. Civ. P. 24(b)(1).