RALPH F. BOYD, JR.

Assistant Attorney General

Civil Rights Division

JOHN L. WODATCH, Chief

L. IRENE BOWEN, Deputy Chief

EUGENIA ESCH

Trial Attorney

Disability Rights Section

Civil Rights Division

U.S. Department of Justice

950 Pennsylvania Avenue NW

Washington, DC 20530

Telephone: (202) 514-3816

PAUL K. CHARLTON

United States Attorney

District of Arizona

RONALD R. GALLEGOS

Assistant United States Attorney

Arizona Bar No. 013227

Two Renaissance Square

40 North Central Avenue, Suite 1200

Phoenix, Arizona 85004-4408

Telephone: (602) 514-7743

Counsel for Plaintiff

United States of America

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Mark A. Bourdon, )

)

Plaintiff, ) No. CV-02-1233-PHX-JFM

)

v.  ) **MEMORANDUM OF POINTS AND**

    ) **AUTHORITIES IN SUPPORT OF**

    Scott T. Croft, M.D.; Arizona ) **THE UNITED STATES' MOTION TO**

    Bone & Joint Specialists, Ltd.; ) **INTERVENE AS OF RIGHT OR,**

    and Lisa M. Croft, wife of ) **ALTERNATIVELY, TO INTERVENE**

    Scott T. Croft, M.D., ) **BY PERMISSION**

    )

    Defendants. )

    )

    The United States files this Memorandum of Points and Authorities in
    support of its Motion to Intervene as of Right or, Alternatively, to
    Intervene by Permission. The United States applies for intervention
    in this action because it has claims against the Defendants that
    arise from the same facts that are at issue in this case, and
    because permitting all claims to proceed together in the same forum
    will conserve judicial resources and ensure the consistent
    application of federal law.

    **BACKGROUND**

    **A. Statutory and Regulatory Background**

    Title III of the Americans With Disabilities Act of 1990 (ADA), 42
    U.S.C. §§ 12181-12189, prohibits places of public accommodation from
    discriminating against individuals with disabilities. Under the ADA,
    an individual is disabled if he has a physical or mental impairment
    that substantially limits one or more major life activities. 42
    U.S.C. § 12102(A). Under Title III and its implementing regulation,
    28 C.F.R. pt. 36, no individual shall be discriminated against on
    the basis of disability in the full and equal enjoyment of the
    goods, services, facilities, advantages, or accommodations of any
    place of public accommodation by any person who owns, leases (or
    leases to), or operates a place of public accommodation.
    [Id.]{.underline} at § 12182(a); 28 C.F.R. § 36.201(a). Places of
    public accommodation include, among other things, professional
    offices of health care providers. [Id.]{.underline} at §
    12181(7)(F); 28 C.F.R. § 36.104.

    Places of public accommodation may violate Title III's general
    prohibition of disability discrimination in various ways including,
    but not limited to:

    a\. denying an individual with a disability the opportunity to
    participate in or benefit from the goods, services, or facilities of
    the public accommodation, [see]{.underline} 42 U.S.C. §
    12182(b)(1)(A)(i); 28 C.F.R. § 36.202(a);

    b\. affording an individual with a disability an opportunity to
    participate in or benefit from goods, services, or facilities that
    is unequal to that afforded to other individuals, [see]{.underline}
    42 U.S.C. § 12182(b)(1)(A)(ii); 28 C.F.R. § 36.202 (b), (c);

    c\. using eligibility criteria that screen out or tend to screen out
    individuals with disabilities from full and equal enjoyment of goods
    and services, [see]{.underline} 42 U.S.C.

    § 12182(b)(2)(A)(i); 28 C.F.R. § 36.301(a); and

    d\. failing to make reasonable modifications in policies, practices,
    or procedures, when such modifications are necessary to afford
    goods, services, or facilities to individuals with disabilities, see
    42 U.S.C. § 12182(b)(2)(A)(ii); 28 C.F.R. § 36.302(a).

    The United States Department of Justice ("United States" or "the
    Department") is the federal agency charged with administering and
    enforcing Title III of the ADA. [See]{.underline} 42 U.S.C. §
    12188(b). The Attorney General is authorized to file suit to enforce
    the ADA whenever an issue of general public importance has been
    identified, and may seek both equitable and monetary relief.
    [See]{.underline} [id.]{.underline}

    Similarly, section 504 of the Rehabilitation Act of 1973, 29 U.S.C.
    § 794, prohibits recipients of Federal financial assistance from
    discriminating against individuals with disabilities. Under section
    504, no otherwise qualified individual with a disability shall,
    solely by reason of her or his disability, be excluded from the
    participation in, be denied the benefits of, or be subjected to
    discrimination under any program or activity receiving Federal
    financial assistance. 29 U.S.C. § 794(a). Recipients of Federal
    financial assistance may not deny a qualified individual with a
    disability the opportunity to benefit from provided services,
    [see]{.underline} 45 C.F.R. § 84.4(b)(1)(i); may not provide a
    qualified individual with a disability with services that are
    unequal to those provided to others, [see]{.underline}
    [id.]{.underline} at § 84.4(b)(1)(ii); may not utilize criteria that
    have the effect of subjecting qualified individuals with
    disabilities to discrimination, [see]{.underline} [id.]{.underline}
    at § 84.4(b)(4)(i); and may not otherwise limit a qualified
    individual with a disability in the enjoyment of aids, benefits, or
    services enjoyed by others, [see]{.underline} [id.]{.underline} at §
    84.4(b)(1)(vii).

    **B. Factual Background**

    Mark Bourdon is a 37-year-old male from Phoenix, Arizona, who works
    as a flight attendant. He was diagnosed with HIV disease and
    Kaposi's Sarcoma (KS), an opportunistic infection associated with
    HIV disease, in 1995. Since his diagnosis, he has been on a
    pharmaceutical regimen which, as of mid-2000, had restored his
    immune system functioning to a near-normal level and had lowered the
    quantum of HIV in his blood to an undetectable amount.

    Arizona Bone & Joint Specialists, Ltd. (ABAJS), is a sports medicine
    practice with offices in Phoenix and Scottsdale, Arizona. ABAJS is a
    professional corporation governed by the laws of the state of
    Arizona, and receives Medicare and Medicaid payments for the cost of
    medical services provided to some patients. Dr. Scott T. Croft is a
    licensed orthopedic surgeon who is a vice president and
    shareholder-employee of ABAJS.

    In April 2000 Bourdon began to feel pain in his left shoulder while
    weightlifting, while performing manual tasks at home and at work,
    and while sleeping. He was examined by Dr. Croft at the ABAJS
    Phoenix office on May 19, 2000, where Croft prescribed a six-week
    course of physical therapy and reduction in physical activity, but
    indicated that, if Bourdon's pain was not controlled by these
    measures, "the next step" would be to perform a clavicle resection,
    a procedure in which that portion of the clavicle which irritates
    adjacent tissues is removed.

    Bourdon attended six physical therapy sessions and modified his
    weightlifting routine, but his pain increased. On July 6, 2000, he
    returned to ABAJS for a second consultation with Dr. Croft. During
    this visit, Croft told Bourdon that he would not perform the
    clavicle resection because "\[w\]hen you're asking me to do surgery,
    you're asking me to put myself, my pregnant wife, my children, and
    my staff at risk" of HIV disease.

    Bourdon eventually saw another orthopedic surgeon who performed the
    clavicle resection. On July 2, 2002, he timely filed a complaint in
    this Court on July 2, 2002, against ABAJS and Dr. Croft, stating
    claims under section 504 of the Rehabilitation Act, the Arizonans
    with Disabilities Act, and common law intentional infliction of
    emotional distress.

    **ARGUMENT**

    **A. The United States is Entitled to Intervene as of Right.**

    Federal Rule 24(a)(2) states that, upon timely application

    anyone shall be permitted to intervene in an action . . . when the
    applicant claims an interest relating to the property or transaction
    which is the subject of the action and the applicant is so situated
    that the disposition of the

    action may as a practical matter impair or impede the applicant's
    ability to protect that interest, unless the applicant's interest is
    adequately represented by existing parties.

    Fed. R. Civ. P. 24(a)(2). Four elements must be shown before a court
    must grant intervention in any particular case: the timeliness of
    the motion to intervene; the applicant's "significantly protectable"
    interest in the subject of the action; potential impairment of the
    applicant's ability to protect that interest if intervention is not
    granted; and inadequate representation of the movant's interests by
    the existing parties. [United States v. City of Los
    Angeles]{.underline}, 288 F.3d 391, 397 (9^th^ Cir. 2002). Courts
    "generally 'construe \[the Rule\] broadly in favor of proposed
    intervenors.'" [Id.]{.underline} (quoting [United States ex rel.
    McGough v. Covington Techs. Co.]{.underline}, 967 F.2d 1391, 1394
    (9^th^ Cir. 1992)).

    1\. [The United States' Motion is Timely.]{.underline}

    "Timeliness is 'the threshold requirement for intervention as of
    right.'" [League of United Latin Am. Citizens v.
    Wilson]{.underline}, 131 F.3d 1297, 1302 (9^th^ Cir. 1997) (quoting
    [United States v. Oregon]{.underline}, 913 F.2d 576, 588 (9^th^ Cir.
    1990)). Three factors are relevant to determining whether any Rule
    24(a)(2) motion is timely filed: (1) the stage of the proceeding at
    which the applicant seeks to intervene; (2) possible prejudice to
    other parties; and (3) the reason for and length of any delay in
    moving to intervene. [Tocher v. City of Santa Ana]{.underline}, 219
    F.3d 1040, 1044 (9^th^ Cir. 2000).

    In this case, Bourdon filed his complaint against ABAJS and Croft on
    July 2, 2002. The defendants filed their answer on November 6, 2002.
    Depositions have been scheduled but will not take place until April
    6, 2002. Neither Bourdon nor the Defendants would be prejudiced by
    the United States' participation in this action at this time, nor
    could they argue that the United States delayed unduly before
    filing. [Cf.]{.underline} [Los Angeles]{.underline}, 288 F.3d at 398
    (stating that parties did not challenge timeliness of Rule 24(a)(2)
    motion filed one and a half months after complaint was filed);
    [Southwest Ctr. for Biological Diversity v. Berg]{.underline}, 268
    F.3d 810, 818 (9^th^ Cir. 2001) (stating that parties stipulated to
    timeliness of motion filed five months after complaint was filed);
    [Idaho Farm Bureau Federation v. Babbitt]{.underline}, 58 F.3d 1392,
    1397 (9^th^ Cir. 1995) (upholding district court's timeliness
    finding, in part because "\[t\]he intervention motion was filed at a
    very early stage, before any hearings or rulings on substantive
    matters"); [Sierra Club v. United States EPA]{.underline}, 995 F.2d
    1478, 1481 (9^th^ Cir. 1993) ("Timeliness is undisputed. The
    application for intervention was made at the outset of the
    litigation, before the EPA had even filed its answer.").

    2\. [The United States Has a Significant Protectable Interest in the
    Existing Action.]{.underline}

    "An applicant \[for intervention\] has a 'significant protectable
    interest' in an action if (1) it asserts an interest that is
    protected under some law, and (2) there is a 'relationship' between
    its legally protected interest and the plaintiff's claims.'" [Los
    Angeles]{.underline}, 288 F.3d at 393 (quoting [Donnelly v.
    Glickman]{.underline}, 159 F.3d 405, 409 (9^th^ Cir. 1998)). "The
    'interest' test is not a clear-cut or bright-line rule, \[however,\]
    because '\[n\]o specific legal or equitable interest need be
    established.'" [Id.]{.underline} (quoting [Greene v. United
    States]{.underline}, 996 F.2d 973, 980 (9^th^ Cir. 1993)). Instead,
    the test is "'primarily a practical guide to disposing of lawsuits
    by involving as many apparently concerned persons as is compatible
    with efficiency and due process.'" [Id.]{.underline} (quoting
    [County of Fresno v. Andrus]{.underline}, 622 F.2d 436, 438 (9^th^
    Cir. 1980)).

    In this case, as the federal agency charged with enforcement of
    Title III of the ADA, the Department has an interest in enforcing
    the statute and its implementing regulation on behalf of the public
    interest in ending disability discrimination. Title III itself
    enables the United States to commence a legal action to advance this
    interest when discrimination prohibited by the ADA takes place.[^1]
    [See]{.underline} 42 U.S.C. § 12188(b)(1)(B). The United States also
    has an interest in ensuring that recipients of federal financing,
    such as ABAJS, do not violate section 504\'s similar prohibition of
    disability discrimination. The factual circumstances underlying the
    United States' claims also form the basis of Bourdon's federal and
    state claims. Because the alternative to the United States'
    intervention in Bourdon's lawsuit is a separate action including the
    United States' Title III and section 504 claims, the "interest"
    test's efficiency goals are best met if intervention is permitted
    here. [See]{.underline} [Greene]{.underline}, 996 F.2d at 979-80
    (dissenting opinion) (discussing Rule 24(a)(2)'s efficiency
    rationale).

    3\. [The United States' Interest Would Be Impaired If It Does Not
    Intervene.]{.underline}

    "'If an absentee would be substantially affected in a practical
    sense by the determination made in an action, he should, as a
    general rule, be entitled to intervene.'" [Southwest
    Ctr.]{.underline}, 268 F.3d at 822 (quoting Fed R. Civ. P. 24
    advisory committee note). Intervention may be required "when
    considerations of *stare decisis* indicate that an applicant's
    interest will be practically impaired." [Greene]{.underline}, 996
    F.2d at 977 (citing [Oregon]{.underline}, 839 F.2d at 638); [see
    also]{.underline} [Yniguez v. Arizona]{.underline}, 939 F.2d 727
    (9^th^ Cir. 1991) (in reversing district court's denial of Rule
    24(a)(2) motion, stating that "jurisprudential concerns might cause
    \[later courts\] to find the reasoning of the district court more
    persuasive than they might otherwise find a similar argument to be,
    and . . . they might choose to accept the district court's reasoning
    to avoid confusion, lack of finality, and disrespect for law").
    Because the *stare decisis* effect of a holding in favor of the
    Defendants may affect negatively the United States' efforts to
    enforce Title III and section 504, both in this case and in other
    cases involving the discriminatory refusal to provide medical care
    to persons with infectious diseases, the impairment factor is met
    here.

    4\. [The Existing Parties Do Not Adequately Represent the United
    States' Interest.]{.underline}

    In determining whether existing parties adequately represent the
    interest of an applicant for intervention under Rule 24(a)(2), this
    Court must consider: "(1) whether the interest of a present party is
    such that it will undoubtedly make all the intervenor's
    arguments; (2) whether the present party is capable and willing to
    make such arguments; and (3) whether the would-be intervenor would
    offer any necessary elements to the proceedings that other parties
    would neglect." [Los Angeles]{.underline}, 288 F.3d at 398 (quoting
    [Northwest Forest Res. Council v. Glickman]{.underline}, 82 F.3d
    825, 838 (9^th^ Cir. 1996)). "\[T\]he burden of showing inadequacy
    is 'minimal,' and the applicant need only show that representation
    of its interests by existing parties 'may be' inadequate."
    [Southwest Ctr.]{.underline}, 268 F.3d at 823 (citing [Trbovich v.
    United Mine Workers]{.underline}, 404 U.S. 528, 538 n.10 (1972)). As
    a general rule, "*no* representation constitutes inadequate
    representation." [Yniguez]{.underline}, 939 F.2d at 737 (emphasis
    added).

    In this case, the United States' interest in enforcing the ADA, and
    its interest in ensuring that recipients of federal funding comply
    with section 504, are clearly unrepresented by the existing parties.
    Bourdon does not raise a Title III claim, and his interest in
    enforcing section 504 diverges from that of the United States. As
    the Ninth Circuit recognized in a recent case allowing private
    parties to intervene alongside government agency defendants,
    "\[t\]he interests of government and the private sector may diverge.
    On some issues Applicants will have to express their own unique
    private perspectives and in essence carry forward their own
    interests." [Southwest Ctr.]{.underline}, 268 F.3d at 823-24. The
    same reasoning applies when, as here, the government seeks
    intervention into a lawsuit between private parties involving
    federal civil rights claims.

    Furthermore, even if Bourdon could be said to represent the public
    interest in Title III and section 504 enforcement, he is incapable
    of making all the arguments that the Department will make if allowed
    to intervene. Bourdon is being represented by the Arizona Center for
    Disability Law, a small, non-profit legal services organization with
    limited resources and limited experience in litigating Title III and
    section 504 claims involving HIV disease as a disability. The Civil
    Rights Division, because it has litigated similar cases in the
    past,[^2] has special expertise in developing and presenting
    evidence in such cases. Such expertise will be necessary in order to
    advance the United States' interests.[^3]

    **B. Alternatively, the United States Should Be Granted Permissive
    Intervention.**

    Rule 24(b), governing permissive intervention, states that

    \[u\]pon timely application anyone may be permitted to intervene in
    an action: (1) when a statute of the United States confers a
    conditional right to intervene; or (2) when an applicant's claim or
    defense and the main action have a question of law or fact in
    common. When a party to an action relies for ground of claim or
    defense upon any statute or executive order administered by a
    federal or state governmental officer or agency or upon any
    regulation, order, requirement, or agreement issued or made pursuant
    to the statute or executive order, the officer or agency upon timely
    application may be permitted to intervene in the action. In
    exercising its discretion the court shall consider whether the
    intervention will unduly delay or prejudice the adjudication of the
    rights of the original parties.

    Fed R. Civ. P. 24(b). Rule 24(b) thus expressly provides for
    permissive intervention by the Department when a federal statute
    confers upon it a conditional right of intervention. In this case,
    Title III of the ADA incorporates by reference the remedies of Title
    II of the Civil Rights Act of 1964, which confers such a conditional
    right of intervention in matters of general public importance.
    [See]{.underline} 42 U.S.C. § 12188(a)(1) (incorporating 42 U.S.C. §
    2000a-3(a)). Although section 504 of the Rehabilitation Act does not
    contain an express right of intervention, advancing the public
    interest in ending disability discrimination, and ensuring that
    recipients of federal funding do their part in this effort, are
    matters of general public importance. Permissive intervention by the
    United States into Bourdon's section 504 action to enforce Title III
    and section 504 is appropriate.[^4] [Cf.]{.underline} [SEC v. United
    States Realty & Imp. Co.]{.underline}, 310 U.S. 434, 459, 460 (1940)
    (rejecting court of appeals holding that "a governmental agency . .
    . may not be permitted to intervene without statutory authority" and
    holding that, even though there was no statutory right of
    intervention, "we think it plain that the Commission has a
    sufficient interest in the maintenance of its statutory authority
    and the performance of its public duties to entitle it \[to\]
    intervention").

    The United States' application also meets all common law
    prerequisites for permissive intervention: there are independent
    grounds for this Court's jurisdiction; the application is timely;
    and the United States' claims and the main action have questions of
    law and fact in common. [San Jose Mercury News, Inc. v. U.S.
    District Court--Northern District (San Jose)]{.underline}, 187 F.3d
    1096, 1100 (9^th^ Cir. 1999) (quoting [United Latin Am.
    Citizens]{.underline}, 131 F.3d at 1308). This Court will have
    federal question jurisdiction over any action the Department might
    bring including claims under Title III and section 504. And, because
    the same timeliness factors apply to determine whether either
    permissive intervention or intervention as of right is appropriate,
    [see]{.underline} [Mercury News]{.underline}, 187 F.3d at 1100-01,
    as shown above, this motion is timely. Finally, the Department's and
    Bourdon's claims have both legal questions and factual questions in
    common.[^5] Because the Department's intervention at this time
    satisfies the threshold requirements for permissive intervention,
    and would not delay the main action nor unfairly prejudice the
    existing parties, the court should grant permissive intervention
    here.

    **CONCLUSION**

    For the foregoing reasons, the United States respectfully requests
    that the Court grant it leave to intervene in this case, either by
    right or by permission.

    Respectfully submitted,

    Respectfully submitted,

    PAUL K. CHARLTON RALPH F. BOYD, JR.

    United States Attorney Assistant Attorney General

    Civil Rights Division

    RONALD R. GALLEGOS JOHN L. WODATCH, Chief

    Assistant United States Attorney L. IRENE BOWEN, Deputy Chief

    Arizona Bar No. 013227 Disability Rights Section

    Two Renaissance Square Civil Rights Division

    Two Renaissance Square

    40 North Central Avenue, Suite 1200

    Phoenix, Arizona 85004-4408

    Telephone: (602) 514-7743

    \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

    EUGENIA ESCH

    Trial Attorney

    Disability Rights Section

    Civil Rights Division

    U.S. Department of Justice

    950 Pennsylvania Avenue NW

    Washington, DC 20530

    Telephone: (202) 514-3816

    **CERTIFICATE OF SERVICE**

    I hereby certify that on this \_\_ day of \_\_\_\_\_\_\_\_\_, 2003,
    true and correct copies of the United States' Motion To Intervene As
    of Right Or Alternatively, To Intervene By Permission, Memorandum of
    Points and Authorities, to Intervene by Permission, and a lodged
    copy of the Complaint in Intervention were served by U.S. Mail,
    postage pre-paid, on the following parties:

    Steven F. Palevitz

    Arizona Center for Disability Law

    100 North Stone Avenue, Suite 305

    Tucson, Arizona 85701

    (520)-327-9547

    Cristina M. Chait

    Kathleen S. Elder

    Jones, Skelton & Hochuli, P.L.C.

    2901 North Central Avenue, Suite 800

    Phoenix, Arizona 85012

    \(602\) 263-7391

    \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

    RONALD R. GALLEGOS

    Assistant U.S. Attorney

    District of Arizona

    Two Renaissance Square

    40 North Central Avenue, Suite 1200

    Phoenix, Arizona 85004-4408

    \(602\) 514-7743

[^1]: 1 ^1^[Cf.]{.underline} [Diamond v. Charles]{.underline}, 476 U.S.
    54, 68-69 (1986) (suggesting that any party that has standing to
    bring its own suit has a sufficient interest to intervene in a
    pending suit).

[^2]: 2 ^2^[See]{.underline} [United States v. Neurological Surgery,
    Inc.]{.underline}, 00-CV-0026-E(M) (N.D. Okla. 2000); [United States
    v. Morvant,]{.underline} 898 F. Supp. 1157 (E.D. La. 1995).

[^3]: 3 ^3^Because Bourdon does not represent the Department's interests
    in Title III and section 504 enforcement, and could not capably do
    so were he the Department's representative, participation by the
    United States as amicus curiae in this matter would be insufficient
    to fully represent the United States' interest. [Cf.]{.underline}
    [Los Angeles]{.underline}, 288 F.3d at 400 (holding that "amicus
    status is insufficient to protect the . . . rights \[of the
    applicant for intervention\] because such status does not allow
    \[the applicant\] to raise issues or arguments formally and gives it
    no right of appeal").

[^4]: 4 ^4^Although section 504, which incorporates the "remedies,
    procedures and rights" of Title VI of the Civil Rights Act of 1964,
    does not include an express right of intervention by the United
    States into private actions, since the enactment of Title VI and
    section 504 there is no reported case in which the United States has
    been denied intervention, and at least one prominent case in which
    the Department has participated as intervenor. [See]{.underline}
    [United States v. Fordice]{.underline}, 505 U.S. 717, 724 (1992)
    (discussing Division intervention into private Title VI action);
    [see]{.underline} [also]{.underline} Consent Decree, [Richardson v.
    City of Steamboat Springs]{.underline}, No. 99-Z-1247 (D. Colo.
    2000) (discussing Division intervention into private action alleging
    claims under Title II of ADA and section 504).

[^5]: 5 ^5^This is so even though the Department would introduce a Title
    III claim into the action; both Title III and section 504, and their
    implementing regulation, require similar showings as to whether
    discrimination has taken place and whether the person alleging
    discrimination is disabled. [See]{.underline}, [e.g.]{.underline},
    [Pascutti v. New York Yankees]{.underline}, No. 98 CIV. 8186(SAS),
    1999 WL 1102748 (S.D.N.Y. Dec. 6, 1999) (deciding burden of proof
    question in case where United States was allowed to intervene into
    Title III action to introduce supplemental claim under Title II of
    the ADA, and also to introduce defendants New York City and New York
    City Department of Parks and Recreation). Ninth Circuit precedent
    allows intervention by federal agencies where specific federal
    statutory interests are at stake, regardless of whether the existing
    parties raised such a statutory claim. [See]{.underline} [Beck v.
    Atlantic Richfield Co.]{.underline}, 62 F.3d 1240, 1242 n.3 (9^th^
    Cir. 1995) (discussing district court's grant of federal
    Environmental Protection Agency's (EPA) application for intervention
    into state law water rights action "because \[plaintiffs'\] request
    to enjoin the \[EPA-ordered\] diversions implicated federal
    interests under CERCLA")