SBA Communications Corporation et al v. Navajo, County of et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
SBA Communications Corporation, et al.,
Plaintiffs,
v.
County of Navajo, et al.,
Defendants.
No. CV-24-08230-PCT-DWL
ORDER
In July 2024, Plaintiffs SBA Communications Corp. and SBA Towers X, LLC
(together, “SBA”) applied to Defendant Navajo County for a special use permit to build a
cell phone tower on a parcel of land near Snowflake, Arizona. While the application was
pending, a group of Navajo County residents who suffer from electromagnetic
hypersensitivity (“EHS”) voiced opposition to the proposed tower on the ground that it
would generate radio frequency (“RF”) emissions that would have adverse effects on their
health and on their property values. Although Navajo County denied the application in
November 2024, it made clear that it was not relying on those individuals’ asserted health
concerns as the basis for its decision.
In this lawsuit, filed in December 2024, SBA argues that Navajo County violated
the Federal Telecommunications Act of 1996 by denying the application. During the early
stages of the case, Navajo County once again clarified that it did not intend to rely on its
residents’ asserted RF-related health concerns as the basis for its decision. The parties also
requested, during the early stages of the case, a referral to a magistrate judge for the purpose
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of conducting a settlement conference.
In August 2025, the parties participated in an all-day settlement conference,
announced they were on the verge of a settlement, and asked the magistrate judge to
schedule a follow-up session in two weeks to finalize the settlement. A few days before
the follow-up session, however, a group of individuals who had previously voiced RF-
related concerns regarding the proposed tower (hereinafter, “Proposed Intervenors”) filed
a Rule 24 motion to intervene. (Doc. 34.) Proposed Intervenors hope to intervene to block
Navajo County from agreeing to allow the proposed tower to be built at the currently
proposed location.
SBA and Navajo County oppose the intervention request on various grounds,
including untimeliness. (Docs. 38, 39.) The intervention request is now fully briefed.
(Docs. 38-42.) For the reasons that follow, the Court agrees that the request is untimely
and denies it on that basis.
RELEVANT BACKGROUND
In July 2024, SBA filed an application with Navajo County for a special use permit
to build a cell phone tower on a parcel of land near Snowflake, Arizona. (Doc. 1 ¶¶ 1, 42;
Doc. 1-1 at 46-128.)
On November 25, 2024, following a series of public hearings, Navajo County
denied SBA’s application. (Doc. 1 ¶¶ 49, 53, 69, 108.) During those hearings (and in
letters sent to Navajo County), a group of Navajo County residents who suffer from EHS
expressed opposition to the proposed tower on the ground that it would generate RF
emissions that would have adverse effects on their health and on their property values. (Id.
¶¶ 56-59, 65-66, 91-92.) However, Navajo County asserted in its denial letter that it had
not relied on those residents’ asserted health concerns as the basis for its decision. (Id.
¶¶ 110-11 [“The Denial Letter began with a disclaimer that the Board has not considered
any comments, statements, or materials regarding adverse health concerns or effects related
to RF emissions. Next, the Denial Letter provides five reasons for the denial.”].)
In December 2024, SBA initiated this action, which seeks to challenge Navajo
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County’s denial of the application. (Doc. 1.)1
On April 18, 2025, the parties filed the Rule 26(f) report. (Doc. 18.) In the Rule
26(f) report, Navajo County once again asserted that “[w]hile the public opposition to the
tower included those who raised health concerns related to electromagnetic emissions, the
County expressly did not consider those concerns in reaching its decision.” (Id. at 4.)
On April 30, 2025, during the case management conference, the parties asked that
the case be referred to a magistrate judge for the purpose of conducting a settlement
conference. (Doc. 20.) The Court made the requested referral. (Id.)
That same day, the Court issued the scheduling order. (Doc. 21.) Among other
things, the scheduling order set a deadline of September 16, 2025 to issue written discovery
and a deadline of October 31, 2025 to complete fact discovery. (Id. at 2.)
On August 25, 2025, a six-hour settlement conference took place. (Doc. 33.) “The
parties made substantial progress toward a settlement agreement” and agreed to “continue
settlement negotiations on Monday, September 8, 2025.” (Id.)
On September 4, 2025, Proposed Intervenors filed the pending motion to intervene.
(Doc. 34.) Proposed Intervenors are individuals who expressed opposition to the proposed
tower, during the proceedings in Navajo County, premised on the proposed tower’s RF
emissions. (Id. at 5 [“When the Board held a public hearing on Plaintiffs’ application, the
Intervenors opposed the construction of the tower that would cause them immeasurable
harm. They submitted, among other things, letters from nearby homeowners attesting to
the adverse impact the proposed tower would have on their disabilities.”].) Proposed
Intervenors’ purpose in seeking to intervene is to block Navajo County from agreeing to
allow the proposed tower to be built at the currently proposed location given its proximity
to their community. (Id. at 16 [“Intervenors have an interest in ensuring that this action is
not settled or determined in favor of SBA herein, or at least is not disposed of without their
input.”]. See also id. at 4 [“Intervenors do not seek to prevent the construction of the
1 Defendants are Navajo County and the Navajo County Board of Supervisors. For
ease of reference, the Court will collectively refer to Defendants as “Navajo County.”
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proposed tower. Rather, they seek to have it constructed at a safe distance from them.”].)
On September 8, 2025, a seven-hour renewed settlement conference took place.
(Doc. 36.) “The parties reached a tentative settlement agreement,” subject to approval by
the Navajo County Board of Supervisors. (Id.)
On September 9, 2025, the parties filed a joint motion to stay the case pending the
approval decision. (Doc. 35.)
On September 10, 2025, the Court denied the stay request without prejudice,
explaining that it was “premature in light of the intervention request, which specifically
argues that the putative intervenors should be allowed to join this action so they can prevent
the parties from settling the action in a manner that would injure them. The Court, to be
clear, takes no position on the merits of the intervention request. The point is simply that
granting the parties’ stay request right now would effectively result in the denial of the
intervention request. The better course of action is to allow the intervention request to
become fully briefed and then resolve it on the merits.” (Doc. 37 at 3.)
The motion to intervene is now fully briefed, with SBA and Navajo County both
opposing it. (Docs. 38-42.) Nobody requested oral argument.
DISCUSSION
I. Legal Standard
“There are two types of intervenors. Rule 24(a) identifies intervenors ‘of right’—
those persons who the court must let intervene. Rule 24(b) identifies ‘permissive’
intervenors—those persons who the court may, but need not, let intervene.” 1 Gensler,
Federal Rules of Civil Procedure, Rules & Commentary, § 24:1 (2025). Proposed
Intervenors seek to intervene under both theories.
Intervention as of right is available to anyone who, “[o]n timely motion, . . . claims
an interest relating to the property or transaction that is the subject of the action, and is so
situated that disposing of the action may as a practical matter impair or impede the
movant’s ability to protect its interest, unless existing parties adequately represent that
interest.” Fed. R. Civ. P. 24(a)(2). Courts in the Ninth Circuit employ a four-part test
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when analyzing intervention of right:
(1) the motion must be timely; (2) the applicant must claim a “significantly
protectable” interest relating to the property or transaction which is the
subject of the action; (3) the applicant must be so situated that the disposition
of the action may as a practical matter impair or impede its ability to protect
that interest; and (4) the applicant’s interest must be inadequately represented
by the parties to the action.
Wilderness Soc’y v. U.S. Forest Serv., 630 F.3d 1173, 1177 (9th Cir. 2011) (citation
omitted). These requirements are broadly construed because “[a] liberal policy in favor of
intervention serves both efficient resolution of issues and broadened access to the courts.”
Id. at 1179 (citation omitted). That said, “[f]ailure to satisfy any one of the requirements
is fatal to the application,” and the Court “need not reach the remaining elements if one of
the elements is not satisfied.” Perry v. Proposition 8 Off. Proponents, 587 F.3d 947, 950
(9th Cir. 2009).
Permissive intervention, meanwhile, is available “[o]n timely motion” to “anyone
. . . who . . . has a claim or defense that shares with the main action a common question of
law or fact.” Fed. R. Civ. P. 24(b)(1)(B). “[A] court may grant permissive intervention
where the applicant for intervention shows (1) independent grounds for jurisdiction; (2) the
motion is timely; and (3) the applicant’s claim or defense, and the main action, have a
question of law or a question of fact in common.” United States v. City of Los Angeles,
Cal., 288 F.3d 391, 403 (9th Cir. 2002) (citation omitted). “The district court is given
broad discretion to make this determination.” Perry v. Schwarzenegger, 630 F.3d 898, 905
(9th Cir. 2011).
II. Timeliness
The Court begins with the question of timeliness because it is dispositive. “In
determining whether a motion for intervention is timely, [courts] consider three factors: (1)
the stage of the proceeding at which an applicant seeks to intervene; (2) the prejudice to
other parties; and (3) the reason for and length of the delay.” League of United Latin Am.
Citizens v. Wilson, 131 F.3d 1297, 1302 (9th Cir. 1997) (cleaned up). “In considering these
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factors, courts must bear in mind that any substantial lapse of time weighs heavily against
intervention.” Id. (cleaned up). “[T]he crucial date for assessing the timeliness of a motion
to intervene is when proposed intervenors should have been aware that their interests would
not be adequately protected by the existing parties.” Smith v. L.A. Unified Sch. Dist., 830
F.3d 843, 854 (9th Cir. 2016) (citation omitted). The same three timeliness factors apply
to requests for intervention as of right and permissive intervention. Wilson, 131 F.3d at
1308. “In the context of permissive intervention, however, [courts] analyze the timeliness
element more strictly than . . . with intervention as of right.” Id.
A. Stage Of The Proceeding
Proposed Intervenors’ motion was filed nearly nine months after this case was
initiated (Doc. 1), more than four months after the parties requested a referral to a
magistrate judge for the purpose of conducing a settlement conference (Doc. 20), about a
week and a half after the parties participated in a six-hour settlement conference and
announced they were on the verge of reaching a settlement (Doc. 33), and only four days
before the parties finalized their settlement during a seven-hour continuation of the
settlement conference (Doc. 36). Courts have rejected, on untimeliness grounds, similar
intervention requests. See, e.g., Cal. Dep’t of Toxic Substances Control v. Com. Realty
Projects, Inc., 309 F.3d 1113, 1119 (9th Cir. 2002) (“[F]iling a motion to intervene . . .
after the parties had come to an agreement following five years of litigation should weigh
heavily against intervention . . . even [if] the agreement had not yet been officially approved
by the district court.”); U.S. Commodity Futures Trading Comm’n v. Forex Liquidity LLC,
384 F. App’x 645, 646-47 (9th Cir. 2010) (concluding that the “district court was well
within its discretion when it found Gray’s motion to intervene untimely” where the motion
was filed after the receiver engaged in discovery and issued a proposed distribution plan);
Pike v. Nick’s Eng. Hut, Inc., 2013 WL 150334, *2 (S.D. Ind. 2013) (“Society’s motion
was filed over a year after this lawsuit was filed . . . and only ten days before the original
parties were prepared to meet at a settlement conference. . . . [A]fter considering the
procedural history of this matter, Society’s Motion is untimely.”); SER Techs., LLC v. Sauk
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Valley Bank & Tr. Co., 2010 WL 2836990, *1 (N.D. Ill. 2010) (intervention request
untimely where it came “well beyond the eleven months delay deemed untimely in [another
case] and came on the eve of a settlement conference”). See generally Rudisill v. Ryan,
2017 WL 897797, *2 (D. Ariz. 2017) (“Motions to intervene may be found untimely in
complicated litigation where the motion was not filed until after settlement. . . . The parties
engaged in four separate settlement conferences and the complex terms of the agreement
necessitated revision before the Stipulated Order was finalized. Renegotiation of this
agreement would result in prejudice because a modification of the Stipulation would
unravel the original settlement.”) (citations omitted).
Moreover, although there was not much contested litigation activity in this case
during the nine-month period before the intervention request was filed,2 the settlement
conference consumed 13 hours of the magistrate judge’s time. Additionally, the
intervention request was filed less than two weeks before the deadline for serving written
discovery and less than two months before the deadline for completing fact discovery.
(Doc. 21 at 2.) These considerations also suggest that the request came at an impermissibly
late stage of the proceeding. Compare Cal. Dep’t of Toxic Substances Control v. World
Cleaners, Inc., 2017 WL 4769439, *1 (C.D. Cal. 2017) (concluding that “the motion to
intervene was not timely” in part because it was filed “after discovery had closed”) with
Sage Electrochromics, Inc. v. View, Inc., 2013 WL 6139713, *2 (N.D. Cal. 2013)
(intervention timely where the case was “still in its relatively early stages” and the court
had “not yet even . . . set a final case schedule”).
Notwithstanding all of this, Proposed Intervenors assert in conclusory fashion in
their motion that the “motion to intervene is timely because. . . the litigation is still in its
beginning stages.” (Doc. 34 at 7.) This assertion fails to address the reality that the motion
was filed just as the case was about to settle (unfavorably to Proposed Intervenors) and just
as written and fact discovery were about to close. Cf. World Cleaners, 2017 WL 4769439
2 The Court’s involvement before the intervention request was not, to be clear, zero.
During earlier stages of the case, the Court addressed a contested motion to strike Navajo
County’s jury demand (Docs. 15, 17, 20) and resolved various disputes in the Rule 26(f)
report over case deadlines (Doc. 18 at 7-8).
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at *1 (“A potential intervenor is not allowed to sit on its rights for the entire litigation to
see how things turn out and then move at the late stages of the case for a ‘do-over.’”). To
their credit, Proposed Intervenors withdraw this assertion (which they attribute to a
“proofing error”) in their reply and instead seek to argue “that the delay in submitting this
motion is forgivable.” (Doc. 40 at 2 & n.1.) The Court will address the merits of that
explanation in Part II.C infra. For present purposes, all that matters is that the first factor
weighs strongly against a finding of timeliness.
B. Prejudice
“Prejudice to existing parties is the most important consideration in deciding
whether a motion for intervention is untimely.” Smith, 830 F.3d at 857 (cleaned up).
Intervention may be prejudicial to other parties where it “would complicate the issues and
prolong the litigation,” United States v. Washington, 86 F.3d 1499, 1504 (9th Cir. 1996),
or where “a lot of water has passed under the litigation bridge.” United States v. Alisal
Water Corp., 370 F.3d 915, 922 (9th Cir. 2004) (cleaned up). However, prejudice cannot
be based on “the fact that including another party in the case might make resolution more
difficult.” Smith, 830 F.3d at 857 (cleaned up).
In their motion, Proposed Intervenors assert in conclusory fashion that “there would
be no prejudice to the existing parties, since the Intervenors filed expeditiously after the
Plaintiff sued, and the Court has conducted no proceedings or issued any substantive orders
or rulings.” (Doc. 34 at 7.) SBA disagrees, arguing it “will suffer significant prejudice” if
intervention is allowed because “[t]he addition of the [Proposed] Intervenors will extend
fact discovery, undo the settlement work achieved by the parties, delay SBA’s ability to
move for summary judgment, and deny SBA its statutory right to an expedited review of
its claims.” (Doc. 38 at 9.) Navajo County similarly argues that the “deadlines set in this
case were carefully tailored by the Court to balance the discovery needed by the County,
and Plaintiffs’ statutory right to a prompt resolution of its Telecommunications Act claims.
The Motion to Intervene, if granted, will upend the schedule set for this case, and . . . seeks
to undermine the efforts made between the parties to find a resolution in this case.” (Doc.
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39 at 4.) Notably, Proposed Intervenors do not address (or dispute) any of these assertions
in their reply—instead, Proposed Intervenors only attempt to explain why their delay was
forgivable. (Doc. 40 at 2-4.)
The Court agrees with SBA and Navajo County that intervention would result in
significant prejudice to the existing parties. SBA asserts claims under the Federal
Telecommunications Act of 1996, a statute that requires “expedited” review. 47 U.S.C.
§ 332(c)(7)(B)(v) (“Any person adversely affected by any final action or failure to act by
a State or local government or any instrumentality thereof that is inconsistent with this
subparagraph may, within 30 days after such action or failure to act, commence an action
in any court of competent jurisdiction. The court shall hear and decide such action on an
expedited basis.”). To that end, SBA requested an aggressive case management schedule.
(Doc. 18 at 9 [“Plaintiffs would prefer the Court hold a case management conference before
issuing a scheduling order. 47 U.S.C. § 332(c)(7)(v) grants the right to expedited . . .
review, so Plaintiffs would like to discuss an expedited schedule.”].) Allowing intervention
at this late stage of the case—where fact discovery is now closed—would upend the case
management schedule and interfere with SBA’s statutory right to expedited review.
C. The Reason For And Length Of The Delay
In their reply, Proposed Intervenors offer an explanation for the late timing of their
motion, which they deem “forgivable.” (Doc. 40 at 2-4.) Proposed Intervenors contend
that they initially intended to file their motion in May 2025, “around the same time that
their counsel applied for admission pro hac vice,” but then decided to delay filing their
motion until their expert, Dr. Mattson, was able to complete her report. (Id.) According
to Proposed Intervenors, “[i]t was well worth the investment of time.” (Id. at 4.) Proposed
Intervenors also contend that they attempted to participate in both of the settlement
conferences but were not allowed to do so. (Id.)
The third factor weighs against a finding of timeliness. As noted, “[t]he crucial date
for assessing the timeliness of a motion to intervene is when proposed intervenors should
have been aware that their interests would not be adequately protected by the existing
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parties.” Smith, 830 F.3d at 854 (citation omitted). There is a strong argument that
Proposed Intervenors were aware, even before this litigation began, that Navajo County
would not adequately protect their interests—Navajo County took pains, in the November
2024 letter explaining the denial decision, to distance itself from Proposed Intervenors’
asserted health-related concerns. (Doc. 1 ¶¶ 110-11.) Indeed, Proposed Intervenors seem
to acknowledge this point in their reply brief. (Doc. 40 at 8 [“[T]he Intervenors’ interests
are not adequately represented by the County. As set forth in the moving papers, the
County stated on the record at the public hearing on SBA’s application that it would not
consider the health impacts the tower would inflict on Intervenors.”].) Nevertheless,
Proposed Intervenors obtained the required awareness, at the latest, in April 2025, when
Navajo County reiterated this position in the Rule 26(f) report. (Doc. 18 at 4.) Although
Proposed Intervenors apparently began taking steps to intervene in the weeks following the
submission of the Rule 26(f) report, as evidenced by their counsel’s submission of a pro
hac vice application in May 2025, they ultimately chose to delay the submission of their
intervention request by another three-plus months because their expert was not yet done
with her report. This was not a compelling reason for the delay—Proposed Intervenors
could have moved to intervene before their expert’s work was complete—and the period
of delay was lengthy, particularly given the statutory directive to provide expedited review.
Cf. FTC v. Cardiff, 2020 WL 766336, *4 (C.D. Cal. 2020), aff’d, 830 F. App’x 844 (9th
Cir. 2020) (delay of nearly two months after protected interest arose “weigh[ed] heavily in
favor of a finding of untimeliness” and “[a]ny purported ‘steps’ taken during that time
period are insufficient to justify” the delay).
D. Balancing
Because all three factors weigh against a finding of timeliness (particularly the first
and second factors), the motion to intervene is untimely.
Given this determination, the Court “need not reach any of the remaining elements
of Rule 24.” Wilson, 131 F.3d at 1302 (citation omitted). With that said, the Court notes
that SBA and Navajo County also raise non-frivolous arguments as to whether Proposed
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Intervenors have a significant protectable interest in light of Wolf v. City of Millbrae, 2023
WL 2134403 (9th Cir. 2023). (Doc. 38 at 6-8; Doc. 39 at 4-6.)
Accordingly,
IT IS ORDERED that:
1. The motion to intervene (Doc. 34) is denied.
2. The parties shall meet and confer and then, within 14 days of the issuance of
this order, file a joint notice with proposed updated case management
deadlines for the Court’s consideration.
Dated this 2nd day of December, 2025.
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