United States District Court, D. Columbia
September 1, 2005.
MICHIGAN GAMBLING OPPOSITION Plaintiff,
GALE A. NORTON, Secretary of the United States Department of the Interior, et. al. Defendants.
The opinion of the court was delivered by: JOHN PENN, Senior District Judge
This matter is before the Court pursuant to the
Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians' ("Tribe")
Motion to Intervene [# 7]. The Tribe seeks to intervene in this
action as a matter of right pursuant to Fed.R.Civ.P. 24(a)(2) or,
alternatively, by permission pursuant to Fed.R.Civ.P. 24(b). As
explained more fully below, the Court concludes that the Tribe
does not meet the requirements for intervention as a matter of
right. However, the Tribe should be granted permissive
intervention pursuant to Fed.R.Civ.P. 24(b).
The Tribe is an Indian tribe descending primarily from a band
of Pottowatomi Indians located in the southwestern portion of the
State of Michigan. Tribe's Mem. P. & A. at 2. Although the Tribe
received federal recognition in 1999, it does not have a
reservation or federally-protected lands. Id. In August 2001,
the Tribe sought to have defendants take into trust a 147-acre parcel of land located in Allegany County, Michigan
which the Tribe planned to convert into a gaming facility. Id.
On May 13, 2005, defendants issued a Notice of Intent to accept
the identified parcel into trust for the Tribe. Id.
A month later, on June 13, 2005, plaintiff filed a complaint in
this Court under the Administrative Procedure Act ("APA"),
5 U.S.C. § 551, et. seq.; the National Environmental Policy Act
("NEPA"), 42 U.S.C. § 4321, et. seq.; and the non-delegation
doctrine of the United States Constitution.*fn1 Compl. at ¶
4. Plaintiff alleges that defendants' intent to place the parcel
into trust for the Tribe would disregard Congress' mandate for
the preparation of an environmental impact statement under NEPA;
violate federal law establishing parameters for gambling on newly
acquired Indian lands; disregard the Tribe's lack of a legally
required gambling compact as required under the Indian Gaming
Regulatory Act ("IGRA"), 25 U.S.C. § 2710, et. seq. and
18 U.S.C. § 1166; and disregard the Constitution's limitation on
delegated legislative power. Id. at ¶¶ 2, 7. As a result of
plaintiff's complaint, defendants agreed to stay their decision
to place the property into trust until this action is dissolved.
Tribe's Mem. P. & A. at 5. The Tribe now seeks to intervene as a
matter of right pursuant to Fed.R.Civ.P. 24(a), or by permission
pursuant to Fed.R.Civ.P. 24(b). Id. at 6.*fn2 DISCUSSION
Before addressing a motion to intervene pursuant to Federal
Rule of Civil Procedure 24, the Court must consider whether the
moving party has standing. See Mova Pharm. Corp. v. Shalala,
329 U.S.App.D.C. 341, 355, 140 F.3d 1060, 1074 (1998).
Accordingly, intervenors must demonstrate that they have a
sufficient "protectable interest" in the proceedings. United
States v. Phillip Morris USA, Inc., No. 99-2496, slip op. at * 2
(D.D.C. July 22, 2005), citing Southern Christian Leadership
Conference v. Kelley, 241 U.S.App.D.C. 340, 342, 747 F.2d 777,
779 (1984). The disputed action in this case concerns defendants'
decision to place a parcel of land into trust for the Tribe. The
Tribe contends that placement of the land into trust is necessary
for it's economic development, self determination, and economic
sufficiency.*fn3 Mot. Intervene at 3. Accordingly, the Tribe
has a protectable interest in this action that is sufficient to
establish standing for the purposes of a Rule 24 motion.
II. Intervention As of Right
Federal Rule of Civil Procedure 24(a), which governs
interventions as of right, states that:
Upon timely application anyone shall be permitted to
intervene in an action: (1) when a statute of the
United States confers an unconditional right to
intervene; or (2) 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
Fed.R.Civ.P. 24(a). In assessing a motion to intervene pursuant
to Rule 24(a), courts in this Circuit consider: (1) the timeliness of the motion; (2) whether
the applicant "claims an interest relating to the property or
transaction which is the subject of the action;" (3) whether "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;" and (4) whether "the applicant's interest
is adequately represented by existing parties." Mova Pharm.
Corp., 329 U.S.App.D.C. at 355, 140 F.3d at 1074. All four
prongs must be satisfied in order for a party to intervene as a
matter of right. United States v. Microsoft Corp., No. 98-1232,
2002 WL 319819, at * 3 (D.D.C. Feb. 28, 2002). The objections
raised by plaintiff and defendants against the Tribe's
intervention under Rule 24(a) do not involve prongs one through
three. Hence the Court will limit it's analysis to prong four.
In order to meet it's burden under prong four, the Tribe must
show that defendants have a "sufficiently different and
particularized interest" that is adverse to the Tribe's
interests. See Envtl. Defense Fund v. Thomas, No. 85-174,
1985 WL 6050, at * 6-7 (D.D.C. Oct. 29, 1985). The Tribe argues
that defendants' interests have already become adverse to it's
own; citing the defendants' decision to stay the establishment of
the trust pending the resolution of this case. Reply to Pl.'s &
Defs.' Resp. at 2. The Tribe claims that defendants initiated the
stay over the Tribe's objection, and without requiring plaintiff
to demonstrate any likelihood of success on the merits. Id.
While the burden on intervenors to show inadequacy of
representation "is not onerous," Phillip Morris, No. 99-2496,
slip op. at * 5, the intervening party must prove more than mere
"quibbles over litigation tactics." Jones v. Prince George's
County, 358 U.S.App.D.C. 276, 282, 348 F.3d 1014, 1020 (2003).
Since defendants granted the Tribe's application to place the
land into trust, and are currently defending that decision,
defendants' interests appear closely aligned with those of the
Tribe. Hence, while the Tribe may not agree with defendants'
decision to stay the transfer, that decision alone is not
sufficient to show that defendants' interests are adverse to the
III. Permissive Intervention
Under Rule 24(b), permissive intervention shall be granted when
"an applicant's claim or defense and the main action have a
question of law or fact in common," and the intervention will not
"unduly delay or prejudice the adjudication of the rights of the
original parties." Here, the Tribe has a sufficient interest in
defending defendants' decision to place the 147-acre parcel of
land into trust. See Tribe's Mem. P. & A. at 7-9. Moreover, the
Tribe's intervention would not delay or prejudice the rights of
the original parties.*fn4
For the foregoing reasons, the Match-E-Be-Nash-She-Wish Band of
Pottawatomi Indians' shall be granted permissive intervention. An
appropriate order accompanies this Memorandum Opinion.
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