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UNITED STATES v. TOWN OF MOREAU

September 18, 1997

UNITED STATES OF AMERICA, Plaintiff, against TOWN OF MOREAU, NEW YORK and GENERAL ELECTRIC COMPANY, Defendants. THE STATE OF NEW YORK, Plaintiff, -against- THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY and THE GENERAL ELECTRIC COMPANY, Defendants, -and- GLENS FALLS NEWSPAPERS, INC. d/b/a THE POST STAR and BRENDAN LYONS, Intervenors.


The opinion of the court was delivered by: KAHN

 Introduction & Background

 This is an action brought under the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. § 9604(e)) and was commenced some nine years ago in an effort to bring about an environmental remedy to a site in the Town of Moreau (the "Town") which had been a disposal facility utilized by defendant General Electric Company ("GE") in the 1950s and 1960s. Presently, it appears that the resolution of this litigation will necessarily involve developing a new public water system for the Town. The matter is, without question, one of significant public interest.

 Following a settlement conference held on March 17, 1997, all parties to the litigation consented to the entry of the following order (the "sealing order"):

 
IT IS HEREBY ORDERED, that all past, present and future drafts of the proposed Stipulation and Order on Consent, or draft settlement agreements referred to by whatever name, and engineering reports, financial reports, attorney work product, and correspondence between counsel for the parties and participants prepared for the purpose of settlement discussions and negotiation in this case, shall be confidential and not disclosed by the parties or their attorneys, until such time as a settlement agreement has been tentatively agreed upon and the parties have agreed to disclose the proposed Stipulation of Settlement and Order on Consent for public discussion and final approval by the clients and relevant public bodies if any. Nothing in this Order shall prohibit the attorneys or the parties from public discussion of the settlement process and certain information that may be contained in portions of the draft settlement agreements so that the public and media may be kept informed about developments in the case.

 Dkt. No. 137. Prior to the commencement of the March 17, 1997 settlement conference, Brendan Lyons ("Lyons"), a Post Star *fn1" reporter, and his attorney informally sought permission to attend. This application was denied.

 The Glens Falls Newspapers, Inc. d/b/a The Post Star (the "Post Star") and Lyons now move the Court for intervenor status in this litigation. The proposed intervenors proceed by order to show cause. Their purpose in seeking intervention is to "obtain[] information concerning the proposed actions of elected officials in connection with making commitments to other parties with respect to Town resources and with respect to positions of the Town regarding settlement of claims involving significant pollution and the water supply of the Town." Dkt. No. 137. The proposed intervenors' precise mechanism for "obtaining" the information sought is not specified in the application. Presumably, the proposed intervenors seek the right to review any documents affected by the sealing order as well as attend future settlement conferences. Also, although it is not sought as explicit relief, the proposed intervenors apparently seek relief from the March 17, 1994 sealing order.

 
All pretrial and settlement conference statements shall be provided to the clerk but not filed. These documents are not for public view. Forms for preparation of pretrial and settlement conference statements are attached at Appendix B to the Rules.

 N.D.N.Y.L.R. 5.7 (1997). From the record, it appears that Mr. Gleason is in possession of the Town's Rule 5.7 statement through some kind of inadvertent disclosure of the same by Mr. Oliver. The return of the Town's Rule 5.7 statement has been demanded by Mr. Oliver but Mr. Gleason has refused and has placed the issue into the Court's hands.

 Since February of this year the Post Star and Lyons have also been seeking a copy of a draft settlement agreement that has been circulated among the parties by means of special proceeding commenced in New York State Supreme Court pursuant to New York's Freedom of Information Law. This proceeding is presently pending.

 The State of New York, GE, and the Town have filed papers in opposition to the application of the proposed intervenors. They characterize the relief sought by the proposed intervenors as both extraordinary and unnecessary. They also argue that granting this relief will further delay the resolution of this litigation. The Court heard the oral argument of the proposed intervenors and the parties on May 9, 1997 and reserved decision.

 DISCUSSION

 A. The Nature of the Instant Application to Intervene

 With respect to procedure, the proposed intervenors do not specify if they seek intervention as of right pursuant to Fed.R.Civ.P. 24(a) or permissively pursuant to Fed.R.Civ.P. 24(b). The Second Circuit has suggested that Rule 24(b) provides the proper procedural route for intervention by a nonparty into a private civil action for the purpose of challenging a confidentiality order in order to gain public access to the court's record. Palmieri v. DIC Concrete Corp., 779 F.2d 861, 864 (2d Cir. 1985); Martindell v. Int'l Tel. and Tel. Corp., 594 F.2d 291, 293 (2d Cir. 1979). Rule 24(b) provides in part:

 
Upon timely application anyone may be permitted to intervene in an action:
 
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(2) when an applicant's claim or defense and the main action have a question of law or fact in common.
 
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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).

 The Post Star and Lyons initially argue that their application is timely. For present purposes, it will be assumed that they are correct. More complicated is the question raised by the proposed intervenor's assertion of their constitutional and common law rights. The proposed intervenors primarily rely on their First Amendment rights in arguing that their present application should be granted. They urge that the public's interest in obtaining information relating to the actions of ...


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