tion for a preliminary injunction and dismissed tion for a preliminary ental Conservation (“DEC”) as a defendant. Plaintiff, Defendant. MEMORANDUM DECISION AND ORDER This Court previously denied plaintiff’s mo vs. 5:09-CV-00471 vs. Case 5:09-cv-00471-NAM-ATB Document 63 Filed 05/06/10 Page 1 of 6 1 of Page 05/06/10 Filed 63 Document 5:09-cv-00471-NAM-ATB Case Regulating District Hodgson Russ LLPThe Guaranty Building140 Pearl Street, Suite 100 Buffalo, New York 14202-4040 Attorneys for Proposed Intervenors Sacandaga Protection Corporation Esq. K. Ahlstrom, Benjamin Daniel A. Spitzer, Esq. the New York State Department of Environm the New York State Department Norman A. Mordue, Chief U.S. District Judge: I. INTRODUCTION Familiarity with the previous memorandum and decision is assumed. Presently before the Court and decision is assumed. with the previous memorandum Familiarity to intervene as of right pursuant to Fed. R. Civ. P. 24 (a)(2) by the Sacandaga is a motion

UNITED STATES DISTRICT COURT DISTRICT STATES UNITED NEW YORK DISTRICT OF NORTHERN ______CORPORATION, MOHAWK POWER NIAGARA GRID, d/b/a NATIONAL HUDSON RIVER-BLACK RIVER REGULATING HUDSON RIVER-BLACK DISTRICT ______APPEARANCES:Hiscock & Barclay, L.L.P.50 Beaver Street Albany, New York 12207-2830 Attorneys for Plaintiff Crane, Parente & Cherubin Regulating District 90 State Street, Suite 1515 Albany, New York 12207 River Attorneys for Defendant Hudson River-Black Mark D. Lansing, Esq. OF COUNSEL: David M. Cherubin, Esq. NAM ga Lake. The State of New York owns the ga Lake. The State of New York ront homes. In some cases, state-owned land In some ront homes. 2 strict”). For obvious reasons, the Court will For obvious reasons, strict”). construction, maintenance and operation of its river and operation of its construction, maintenance The focal point of the District’s operation in the Hudson River watershed is the District’s operation in the The focal point of

The District builds and operates reservoirs, issues bonds and apportions costs on and operates reservoirs, issues The District builds altered new rules which would have fundamentally In October 2007, the District proposed Case 5:09-cv-00471-NAM-ATB Document 63 Filed 05/06/10 Page 2 of 6 2 of Page 05/06/10 Filed 63 Document 5:09-cv-00471-NAM-ATB Case its ownership and operation of the Conklingville Dam and its related body of water, the Conklingville Dam its ownership and operation of the as Great Sacanda Sacandaga Reservoir, now known address SPC’s motion to intervene first and, if necessary, provide said party an opportunity to an opportunity provide said party and, if necessary, to intervene first SPC’s motion address judgment. for summary to the pending motion in support of, or in opposition papers submit FACTS II. RELEVANT beneficiaries to finance the statutorily defined regulating reservoirs. cases, the state- Lake up to a certain water level. In many land surrounding the Great Sacandaga owned waterf owned land directly abuts privately the District has operated a For over 70 years, of these homes. runs directly up to the back doors occupy the state-owned land by which certain parties have been allowed to use and system permit for recreational purposes in exchange for a Lake, primarily surrounding the Great Sacandaga fee. permit of fees including new procedures for the application, payment system the long standing permit holders were permit system, Under the decades old permit and rights conferred by the permits. the strip of state-owned from allowed to landscape the lakefront and exclude the general public to treat state-owned and the water, which in essence allowed permittees land between their homes DEC, virtually the entire state- land as though it was their own. Under the new rules proposed by a free public park, including the owned shoreline of the Great Sacandaga Lake would become Protection Corporation (“SPC”) as well as a motion for summary judgment by defendant Hudson by defendant judgment for summary motion as a as well (“SPC”) Corporation Protection Di District (“the River Regulating River-Black NAM d/b/a National Grid claims that the District’s d/b/a National Grid claims 3 The District’s current permit system provides the public with recreational access to Great the public with recreational provides system permit The District’s current proposed revisions to the District’s rules for the access Governor Patterson withdrew the Case 5:09-cv-00471-NAM-ATB Document 63 Filed 05/06/10 Page 3 of 6 3 of Page 05/06/10 Filed 63 Document 5:09-cv-00471-NAM-ATB Case beaches, docks, and improvements made in front of homes worth in excess of a million dollars by of a million in excess worth of homes in front made improvements and docks, beaches, to respond in May 2009 formed SPC was along the shoreline. state-owned land holders on permit SPC rule changes. system permit regarding proposed and DEC taken by the District to actions lot” and “back lot,” business “front property owners - both a wide range of constituents include holders. are permit SPC Many constituents of Great Sacandaga Lake. users of and recreational the current a legal and political fight to ensure and well funded to launch SPC was well organized unchanged. remained access system permit the general public and property owners to occupy and use the Sacandaga Lake and allows both exclusive access holders are granted In certain areas, permit state land that surrounds the lake. property values areas. These exclusive access rights are reflected in the high rights to permitted tax through a stable to SPC benefits the local economy of lakefront properties (which according their access areas by installing at their own expense and holders have improved base). Permit platforms, picnic areas, swimming docks, rip-rap for erosion control, pursuant to permits, by areas the permit holders also maintain cases, permit In many stairways, and other structures. the lawns, ensuring cleanliness, and clearing debris. mowing such changes to “consider the implications 2009, at least temporarily, in June system permit in However, as a part of its complaint and economy.” would have on the region’s environment this case, plaintiff Niagara Mohawk Power Corp. by the Federal Power Act. Thus, SPC is illegal and/or preempted system current access permit the of by the outcome be affected its constituents may rights of concerned that the alleged remains to Fed. R. Civ. P. 24 (a) (2). The right pursuant pending litigation and seeks intervention as of by SPC while plaintiff opposes it. District takes no position on the motion NAM ., 847 State of , 725 F.2d 871, 874 (2d Cir. , 870 F.2d 1256, 1260 (7th , 820 F.2d 554, 556 (2d Cir. Brennan v. N.Y.C. Bd. of Educ., ear: First, short of plaintiff’s conclusory 4 tisfied to qualify for intervention as of right. tisfied to qualify for intervention United States v. State of New York (citing United States v. City of Chicago see also Farmland Dairies v. Comm’r of New York Dep't of Agric Dairies v. Comm’r of New York see also Farmland New York Pub. Interest Research Group, Inc. v. Regents of the Univ. of the New York Pub. Interest Research Group, Inc. v. Regents of the Univ. Upon (1) timely application anyone shall be permitted to intervene anyone shall be permitted application Upon (1) timely relating to (2) an interest the applicant claims in an action . . . when the action and (3) which is the subject of the property or transaction as action may the situated that the disposition of the applicant is so to protect ability the applicant's impede or impair a practical matter is adequately interest unless the applicant's that interest, (4) parties. represented by existing , 820 F.2d at 556. Upon review of the record the following is cl Plaintiff asserts that SPC’s application is untimely since SPC waited until five months until five since SPC waited asserts that SPC’s application is untimely Plaintiff Rule 24(a)(2) of the Fed. R. Civ. P. provides a four part test for intervention as of right: for intervention a four part test R. Civ. P. provides of the Fed. Rule 24(a)(2) Restor-A-Dent Dental Labs., Inc. v. Certified Aloe Prods., Inc. Restor-A-Dent Dental Labs., Inc. Case 5:09-cv-00471-NAM-ATB Document 63 Filed 05/06/10 Page 4 of 6 4 of Page 05/06/10 Filed 63 Document 5:09-cv-00471-NAM-ATB Case Cir. 1989). Indeed, after the action was commenced to move to intervene and that SPC’s interests will adequately be to intervene and that SPC’s interests to move action was commenced the after District also avers that it can represent SPC’s interests and adds represented by the District. The for apply each year interests in this case since they must that SPC constituents have no property permits. to use state-owned land with no guarantee they will be awarded such annual permits 260 F.3d 123 (2d Cir. 2001) statement, there is no evidence that SPC’s application for intervention is untimely or has resulted or has intervention is untimely for there is no evidence that SPC’s application statement, that the intervenor prove a in prejudice to any party. Second, Rule 24(a)(2) “does not require property right, whether in the constitutional or any other sense.” Fed. R. Civ. P. 24(a)(2); Fed. R. Civ. P. 24(a)(2); F.2d 1038, 1043 (2d Cir. 1988); 1987); III. DISCUSSION III. A. Legal Standard Applicable 1984). All four parts of the test must be sa must 1984). All four parts of the test New York B. SPC’s Right to Intervene NAM ga Protection Corporation have 15 days ation’s motion to intervene is GRANTED; ation’s motion a property right. Rule 24(a)(2) requires not a a property right. 5 various serious and fundamental financial various serious and fundamental rk, Inc. and three individual pharmacists had pharmacists three individual rk, Inc. and SPC and the District have sufficiently different SPC and the District have sufficiently It is very clear that SPC’s constituents have an interest in the outcome that SPC’s constituents have an It is very clear Id. , 516 F.2d 350, 351-52 (2d Cir. 1975) (per curiam), held that the held (per curiam), 1975) (2d Cir. 351-52 F.2d 350, , 516 which is the sole and founding interest of SPC. which is the sole and founding interest ORDERED that the parties including Sacanda Based upon the foregoing, it is hereby ORDERED that Sacandaga Protection Corpor Finally, SPC asserts that the District has Finally, SPC asserts that the District Case 5:09-cv-00471-NAM-ATB Document 63 Filed 05/06/10 Page 5 of 6 5 of Page 05/06/10 Filed 63 Document 5:09-cv-00471-NAM-ATB Case and it is further schedule for briefing within which to confer which each other, agree to and file an amended either in support of or in additional filing of papers (including opposition and reply papers) State of New York of New State New Yo of the State of Society Pharmaceutical Thus, both parties could not be represented as the present litigation is concerned. interests insofar have an interest in preserving the District’s permit both parties may counsel. While by the same as it exists system access be interested in preserving the permit not District may the system, presently IV. CONCLUSION standing to intervene as of right in an action challenging the legality of a regulation prohibiting a regulation of the legality in an action challenging right of to intervene as standing in interest of pharmacists though the economic of prescription drugs, even advertising the price clearly did not constitute sustaining the regulation is the to the property or transaction which but, rather, “an interest relating property interest subject of the action.” on access system District’s current permit to the extent it involves the of the present litigation is all that is required which or impeded,” be “impaired may Great Sacandaga Lake, which interest by Fed. R. Civ. P. 24 (a)(2). defend the present litigation, an allegation the which will affect its ability to effectively problems apparent that District denies. Regardless, it is NAM 6 IT IS SO ORDERED. IT IS SO Date: May 5, 2010 Case 5:09-cv-00471-NAM-ATB Document 63 Filed 05/06/10 Page 6 of 6 6 of Page 05/06/10 Filed 63 Document 5:09-cv-00471-NAM-ATB Case York Syracuse, New opposition to the pending motion for summary judgment by Sacandaga Protection Corporation by Sacandaga judgment for summary motion to the pending opposition other parties. and/or all NAM