ORDER REGARDING APPEAL OF MAGISTRATE JUDGE’S ORDER DENYING MOMS ON A MISSION HUI, MOLOKA`I MAHI`AI, GERRY ROSS, AND CENTER FOR FOOD SAFETY’S MOTION FOR LEAVE TO INTERVENE; ORDER GRANTING LEAVE TO PROPOSED INTERVENORS TO FILE AMICUS CURIAE BRIEF
Susan Oki Mollway Chief United States District Judge
Plaintiffs in this case challenge a County of Maui ordinance passed through the initiative process in the 2014 election that prohibits the cultivation of genetically modified organisms. Before the court is an appeal from an order issued by Magistrate Judge Barry M. Kurren denying a motion to intervene filed by Proposed Intervenors Moms on a Mission Hui, Moloka`i Mahi`ai, Gerry Ross, and Center Food Safety. The court does not here disturb Magistrate Judge Kurren’s intervention ruling, but does grant Proposed Intervenors leave to file a brief as amicus curiae.
This court is compelled to resolve this intervention issue in considerable haste. Pending before the court is a summary judgment motion filed by Plaintiffs. Opposing memoranda are due toward the end of this month. Proposed Intervenors seek to intervene for the purpose of filing an opposing memorandum by that deadline. A reply memorandum deadline and hearing date have also been set with an eye toward giving the court an opportunity to rule on the summary judgment motion before the date that the challenged ordinance takes effect.
II. PROPOSED INTERVENORS MAY NOT SEEK REVIEW BY A DISTRICT JUDGE OF MAGISTRATE JUDGE KURREN’S INTERVENTION RULING UNDER 28 U.S.C. § 636, LOCAL RULE 74.1, LOCAL RULE 74.2 OR RULE 72 OF THE FEDERAL RULES OF CIVIL PROCEDURE.
The court begins by addressing the procedural mechanism that Proposed Intervenors have used for challenging Magistrate Judge Kurren’s ruling. In their original request, ECF No. 73, Proposed Intervenors said they were taking an appeal from that ruling to a district judge pursuant to 28 U.S.C. § 636(b)(1)(A), which concerns rulings on pretrial matters, and that the district judge should set aside the ruling if it was “clearly erroneous or contrary to law” under Local Rule 74.1 and Rule 72 of the Federal Rules of Civil Procedure. In a subsequent filing, Proposed Intervenors took the position that the district judge should treat Magistrate Judge Kurren’s ruling as “findings and recommendations” on a dispositive matter subject to de novo review under 28 U.S.C. § 636(b)(1)(B), Local Rule 74.2, and Rule 72 of the Federal Rules of Civil Procedure. See ECF No. 79 at Page ID # 2014. This court concludes that Magistrate Judge Kurren’s ruling falls under neither provision of § 636(b)(1).
Subsection b of § 636 addresses matters that a district judge may designate or assign to a magistrate judge. Actions that a magistrate judge takes under subsection b are subject to review by a district judge. At the time he denied Proposed Intervenors’ motion to intervene, Magistrate Judge Kurren was not acting pursuant to subsection b. Instead, he was presiding over this case pursuant to subsection c of 28 U.S.C. § 636.
Subsection c provides that, upon the consent of the parties, a magistrate judge may conduct all proceedings in a civil matter and order the entry of judgment in the case. Section 636(c)(3) provides that, upon entry of judgment in a case handled by a magistrate judge with the consent of the parties, an appeal may be taken directly to the court of appeals.
After Magistrate Judge Kurren denied Proposed Intervenors’ motion to intervene, he ceased to be the presiding judge in this action, as other parties whose intervention motion he had granted declined to consent to his conducting all proceedings. The present district judge then became the judge presiding over this case.
There does not appear to be any Ninth Circuit decision addressing either the issue or whether subsection c allows a magistrate judge to rule on an intervention motion brought by a movant who has not expressly consented to the magistrate judge’s handling of all matters in the case, or the issue of whether an order denying intervention entered by a magistrate judge acting under subsection c may be reviewed by a district judge. There is division among the circuit and district courts that have examined these issues. At the circuit court level, the division is seen in the contrasting positions of the Second and Seventh Circuits.
In New York Chinese TV Programs, Inc. v. U.E. Enterprises, Inc., 996 F.2d 21, 24-25 (2d Cir. 1993), the Second Circuit said that, absent an intervenor’s consent, a magistrate judge does not have the authority to enter a final order denying intervention. The Second Circuit reversed a district court ruling in which a district judge stated that the district judge lacked jurisdiction to review a magistrate judge’s order denying intervention, issued while the magistrate judge was presiding over a case under § 636(c). The Second Circuit viewed the magistrate judge’s order as having been in the nature of findings and a recommendation subject to review by a district judge.
By contrast, in People Who Care v. Rockford Board of Education, School District No. 205, 171 F.3d 1083, 1089 (7th Cir. 1999), the Seventh Circuit said that “the power to rule on motions to intervene is a necessary and proper incident of the magistrate judge’s power to decide the underlying case” under § 636(c)(1). That statutory provision “requires only the consent of ‘parties’ to the magistrate judge’s entering dispositive orders.” The Seventh Circuit noted that an applicant for intervention is not a party and is instead only someone who “wants to become a party.” Id.
This court joins a number of district courts that, having studied the issue, think the Seventh Circuit makes the better argument. See, e.g., Altier v. Worley Catastrophe Response, LLC, 2012 WL 161824, at *5 (E.D. La. Jan. 18, 2012); Centrue v. Golf Discount of St. Louis, Inc., 2010 WL 2802034, at *2 (E.D. Mo. July 15, 2010); Natural Resources Defense Council v. Gutierrez, 2007 WL 1518359, at *2 (N.D. Cal. May 22, 2007).
In the first place, the Second Circuit decision gives a magistrate judge presiding by consent under § 636(c) less deference than a magistrate judge presiding under § 636(b). That is, the Second Circuit treats a magistrate judge’s intervention ruling as equivalent to findings and a recommendation subject to de novo review by a district judge when the magistrate judge is operating with the consent of the parties. But when operating under § 636(b) (that is, without the consent of the parties), a magistrate judge deciding an intervention motion would typically enter an order, not findings and recommendation. When the magistrate judge is operating under § 636(b), the magistrate judge’s order on a nondispositive matter such as an intervention motion is subject to review by a district judge under the more deferential “clearly erroneous and contrary to law” standard. In this court’s ...