Appeals from an order of the United States District Court for the Eastern District of New York, Leonard D. Wexler, Judge, denying as untimely proposed intervenors-appellants' motions to intervene in action, and from other orders entered in that action. Plaintiffs-appellees challenged, as violative of the interstate commerce clause of the Constitution of the United States, defendants-appellees' application of section 258-c of the New York Agriculture and Markets Law to bar plaintiffs-appellees from selling milk in certain counties in the State of New York. After the district court granted summary judgment to plaintiffs-appellees on their commerce clause claim and entered a corresponding permanent injunction against defendants-appellees, those parties settled the case. Proposed intervenors-appellants thereupon sought to intervene to take an appeal. Order denying intervention affirmed. Appeals from remaining orders dismissed.
Van Graafeiland, Kearse and Mahoney, Circuit Judges.
Plaintiffs-appellees Farmland Dairies and Fair Lawn Dairies, Inc. (collectively "Farmland") are dairy companies based in New Jersey and licensed by the New York Department of Agriculture and Markets (the "Department") to distribute milk in New York State in Orange, Richmond, Rockland and Westchester counties.*fn1 Until January 2, 1987, defendant Joseph Gerace was the Commissioner of the Department (the "Commissioner") and was responsible, inter alia, for administration of the law governing the licensing of milk dealers in New York. The proposed intervenors-appellants ("Appellants") are milk dealers based in New York and licensed to distribute milk in the New York metropolitan area.
In an action brought by Farmland against Commissioner Gerace in the United States District Court for the Eastern District of New York, Leonard D. Wexler, Judge, Farmland contested the refusal of the Commissioner to allow Farmland to distribute milk in New York, Bronx, Kings and Queens counties as violative of the interstate commerce clause of the federal Constitution. The district court agreed, and ordered the Commissioner to refrain from applying New York's Agriculture and Markets Law unconstitutionally so as to deprive Farmland of access to the New York metropolitan milk market. See Farmland Dairies v. Comm'r of New York State Dep't of Agric. and Mkts., 650 F. Supp. 939 (E.D.N.Y. 1987). Thereafter, the parties entered into a settlement agreement. Appellants then sought leave to intervene in order to appeal the district court's judgment. The district court denied the motion as untimely.
Appellants took these appeals from the district court's order denying intervention, and from several other orders of the district court in this action. For the reasons set forth below, we conclude that the district court's denial of Appellants' motions to intervene was not an abuse of the court's discretion. Accordingly, we affirm that order, and dismiss the appeals taken from the remaining orders.
New York regulates the sale of milk pursuant to a licensing scheme set forth in Article 21 of its Agriculture and Markets Law, N.Y. Agric. & Mkts. Law §§ 252 through 258-r (McKinney 1972 & Supp. 1988), and regulations promulgated thereunder, N.Y. Admin. Code tit. 1A, §§ 24-1.1 through 24-1.5 (1986). An applicant seeking to sell milk in New York must apply to the Department for a license or licenses on a county-by-county basis. Id. at §§ 24-1.3(a)(2) and 27.1. Until recently, section 258-c of the Agriculture and Markets Law permitted the Commissioner to deny any license if he "finds by a preponderance of the evidence, after due notice and opportunity of hearing to the applicant or licensee, . . . that the issuance of the license will tend to a destructive competition in a market already adequately served; or . . . that the issuance of the license is not in the public interest."*fn2
On December 30, 1985, Farmland applied for an extension of its milk dealer's license to serve New York, Bronx, Kings and Queens counties (the "four counties") which, together with Richmond County (a/k/a Staten Island), constitute New York City. In early April, 1986, Farmland was notified that the Department would hold hearings on the application. The hearings were conducted from June 23 to July 18, 1986.
By notice dated April 17, 1986, the Department notified affected milk dealers that Tuscan Dairy Farms, Inc. ("Tuscan"), a New Jersey-based dairy in competition with Farmland, had applied on April 10, 1986 for an extension of its New York license to acquire and operate the assets of the Metropolitan Division of Dairylea Cooperative, Inc. ("Dairylea"), a major New York dairy manufacturing concern. This division included a Queens County processing plant and distributed milk throughout New York City, as well as in Nassau, Suffolk and Westchester counties. The Department's notice invited submission of written comments pertaining to Tuscan's application not later than April 30, 1986, and stated an intention to take "prompt action on the application after consideration of written comments and other relevant facts."
In response to this notice, a law firm representing Farmland wrote the Commissioner on April 25, 1986 objecting to allegedly discriminatory treatment of Farmland's four-county application, on which hearings were scheduled, in contrast with Tuscan's application, which was to be the subject of "prompt action" without hearings. Tuscan's application was granted, and its license extension became effective on May 5, 1986.
Thereafter, pursuant to New York's Freedom of Information Law, Farmland requested the Department to provide information concerning the background of Tuscan's application. The response disclosed a letter dated May 6, 1986 from the Department to Tuscan conditioning the Tuscan approval on the understanding that for one year following the effective date of its license extension, Tuscan would notify the Department and obtain approval "for any significant change in plant source of packaged milk" for the Metropolitan Division of Dairylea. Notification, but not approval, was required during the second and third years, and thereafter if the Queens processing plant was to be shut down for a period in excess of one week or closed. Thus, the milk to be processed at the Queens processing plant would continue to originate in New York, and the Tuscan acquisition would not introduce into New York, at least immediately, competition based in New Jersey.
On June 9, 1986, Farmland commenced the instant litigation against Commissioner Gerace in his official and individual capacities. Farmland sought a declaration that N.Y. Agric. & Mkts. Law § 258-c, as applied to block Farmland from selling milk in the four counties, violated the commerce clause of the federal Constitution, and that Gerace had violated Farmland's equal protection and due process rights under the fourteenth amendment. Farmland sought both injunctive relief and damages.
On June 10, 1986, by order to show cause, Farmland moved for a preliminary injunction restraining Gerace from continuing to enforce section 258-c in a manner violative of the Constitution. The motion was denied by the district court on July 29, 1986, without prejudice to its renewal on October 13, ...