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Forest County Potawatomi Community v. United States

United States District Court, District of Columbia

April 14, 2016

FOREST COUNTY POTAWATOMI COMMUNITY, Plaintiff,
v.
UNITED STATES, et al., Defendants MENOMINEE INDIAN TRIBE OF WISCONSIN and MENOMINEE KENOSHA GAMING AUTHORITY, Defendant-Intervenors.

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE

Plaintiff Forest County Potawatomi Community (“Potawatomi”) brought this action under the APA against Defendants United States of America, United States Department of the Interior, Secretary of the Interior Sally Jewell, and Assistant Secretary of Indian Affairs Kevin Washburn (collectively, the “Federal Defendants”), challenging the Federal Defendants’ decision to disapprove an amendment to a gaming compact between FCPC and the State of Wisconsin under the Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701 et. seq, (“IGRA”).

Presently before the Court is the [22] Motion for Leave to Intervene filed by the Menominee Indian Tribe of Wisconsin and the Menominee Kenosha Gaming Authority (collectively, the “Menominee” or the “Putative Intervenors”), which is opposed by Plaintiff.[1] Upon consideration of the pleadings, [2] the relevant legal authorities, and the record as a whole, the Court finds that the Putative Intervenors are entitled to intervene as a matter of right under Federal Rule of Civil Procedure 24(a). Accordingly, the Court shall GRANT their Motion for Leave to Intervene.

I. BACKGROUND

For purposes of resolving the motion to intervene presently before the Court, the well-pleaded allegations in the Complaint are assumed to be true. Secs. & Exch. Comm'n v. Prudential Secs. Inc., 136 F.3d 153, 156 n.4 (D.C. Cir. 1998) (citing Williams & Humbert Ltd. v. W. & H. Trade Marks (Jersey) Ltd., 840 F.2d 72, 75 (D.C. Cir. 1988)). Additionally, where appropriate, the Court shall refer to the non-conclusory allegations and record evidence offered by the Putative Intervenors in support of their motion to intervene. See Foster v. Gueory, 655 F.2d 1319, 1324 (D.C. Cir. 1981) (“[M]otions to intervene are usually evaluated on the basis of well pleaded matters in the motion, the complaint, and any responses of opponents to intervention.”); Sw. Ctr. for Biological Diversity v. Berg, 268 F.3d 810, 820 (9th Cir. 2001) (“Courts are to take all well-pleaded, nonconclusory allegations in the motion to intervene, the proposed complaint or answer in intervention, and declarations supporting the motion as true absent sham, frivolity or other objections.”). The Court recites the principal facts pertaining to the issues raised in the pending motion, reserving further presentation of the facts for the discussion of the individual issues below.

Potawatomi, a federally-recognized Indian Tribe, filed suit on January 21, 2015, seeking redress for the Federal Defendants’ disapproval of an amendment to a gaming compact between Potawatomi and the State of Wisconsin (the “2014 Compact Amendment”). Compl. ¶ 1. The 2014 Compact Amendment includes a provision that would require the State to compensate Potawatomi for lost revenue resulting from the Governor’s concurrence in any tribe’s application to take certain lands into trust for gaming purposes, if such lands are within 30 to 50 miles from Potawatomi’s existing gaming facility in Milwaukee, Wisconsin. Id. ¶ 16. According to the Complaint, this provision would create a “50-mile non-competition zone” around Potawatomi’s facility in Milwaukee. Id. ¶ 16

Potawatomi alleges that the Federal Defendants erred by interpreting the 2014 Compact Amendment as obligating Putative Intervenor Menominee Indian Tribe of Wisconsin-also a federally recognized Indian tribe in Wisconsin that is eligible to conduct gaming under the IGRA- to compensate Potawatomi for lost revenue resulting from a proposed Menominee casino in Kenosha, Wisconsin, approximately thirty-three miles from a Potawatomi gaming facility in Milwaukee. Id. ¶¶ 4, 44.[3] Potawatomi believes that in disapproving the 2014 Compact Amendment, the Federal Defendants acted contrary to law, in an arbitrary and capricious manner and abused their discretion, if any, in violation of the IGRA and the Administrative Procedures Act, 5 U.S.C. §§ 701 et seq. (“APA”). Plaintiff’s Complaint seeks, inter alia, (1) an order holding unlawful and setting aside the Federal Defendants’ disapproval of the 2014 Compact Amendment; (2) an order compelling the Federal Defendants to approve the 2014 Compact Amendment or to cause the 2014 Compact Amendment to take effect as “deemed approved” under the IGRA; (3) and an order that the Federal Defendant shall take those actions necessary for the 2014 Compact Amendment to take effect as a matter of federal law. See Compl at 25-26.

On October 28, 2015, the Menominee Indian Tribe of Wisconsin and the Menominee Kenosha Gaming Authority-a tribal business chartered by the Menominee Indian Tribe of Wisconsin under tribal law for the purpose of conducting tribal gaming on lands to be acquired by the Tribe in Kenosha, Wisconsin-filed a Motion to Intervene in this action. See Menominee’s Mot. for Leave to Intervene, ECF No. [22], at 2. The Menominee Indian Tribe of Wisconsin, the Menominee Kenosha Gaming Authority, and the State of Wisconsin are parties to the “Menominee Indian Tribe of Wisconsin and State of Wisconsin Gaming Compact of 1992, ” as amended (hereafter the “Menominee Gaming Compact”). See Id. at 3. The Menominee Gaming Compact authorizes the operation of tribal gaming in Kenosha, Wisconsin, pursuant to the IGRA and the Compact, subject to approval by the Department of the Interior and concurrence by the Governor of Wisconsin. See Id. The Menominee Indian Tribe of Wisconsin and the Menominee Kenosha Gaming Authority, as Putative Intervenors, contend that if the 2014 Compact Amendment were to be approved or deemed approved, it would have a “direct and harmful impact on the rights and interests of [the Menominee] in conducting games in Kenosha, Wisconsin” pursuant to the IGRA and the Menominee Gaming Compact. Menominee’s Mem., ECF No. [22-1], at 2.

Through their motion, the Putative Intervenors seek to intervene as defendants as a matter of right pursuant to Federal Rule of Civil Procedure 24(a), or alternatively, by permissive intervention pursuant to Federal Rule of Civil Procedure 24(b). As discussed below, the Court finds that the Putative Intervenors are entitled to intervene as a matter of right in this action under Rule 24(a). Because the Court concludes that the Putative Intervenors are entitled to intervene as a matter of right, the Court finds it unnecessary to determine whether the Putative Intervenors are also entitled to intervene by permissive intervention pursuant to Rule 24(b). See Am. Horse Prot. Assoc., Inc. v. Veneman, 200 F.R.D. 153, 156 (D.D.C. 2001) (concluding that movant was entitled to intervene as of right and declining to reach question of permissive intervention).

II. LEGAL STANDARD

Rule 24(a) of the Federal Rules of Civil Procedure governs intervention as a matter of right. That provision provides, in relevant part, that “[o]n timely motion, the court must permit anyone to intervene who . . . 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). Consistent with this language, the United States Court of Appeals for the District of Columbia Circuit (the “D.C. Circuit”) has identified four requirements for intervention as a matter of right:

(1) Timeliness: First, an application to intervene in a pending action must be timely. Karsner v. Lothian, 532 F.3d 876, 885 (D.C. Cir. 2008). Whether a given application is timely is a context-specific inquiry, and courts should take into account (a) the time elapsed since the inception of the action, (b) the probability of prejudice to those already party to the proceedings, (c) the purpose for which intervention is sought, and (d) the need for intervention as a means for preserving the putative intervenor's rights. Id. at 886.
(2) Interest: Second, the putative intervenor must have a “legally protected” interest in the action. Id. at 885. The test operates in large part as a “practical guide, ” with the aim of disposing of disputes with as many concerned parties as may be compatible with efficiency and due process. United States v. Morten, 730 F.Supp.2d 11, 15-16 (D.D.C. 2010).
(3) Impairment of Interest: Third, the action must threaten to impair the putative intervenor’s proffered interest in the action. Karsner, 532 F.3d at 885. The inquiry is not a rigid one: consistent with the Rule’s reference to dispositions that may “as a practical matter” impair the putative intervenor’s interest, Fed.R.Civ.P. 24(a)(2), courts look to the “practical consequences” of denying intervention, Fund for Animals, Inc. v. Norton, 322 F.3d 728, 735 (D.C. Cir. 2003) (citing Natural Res. Def. Council v. Costle, 561 F.2d 904, 909 (D.C. Cir. 1977)).
(4) Adequacy of Representation: Fourth, and finally, no existing party to the action may adequately represent the putative intervenor’s interests. Karsner, 532 F.3d at 885. Significantly, the putative intervenor’s burden here is de minimis, and extends only to showing that there is a possibility that its interests may not be adequately represented absent intervention. Fund for Animals, 322 F.3d at 735.

In addition to these four requirements, which emanate from the text of Rule 24(a) itself, a putative intervenor must further establish that it has standing under Article III of the Constitution. Fund for Animals, 322 F.3d at 728. Where a party seeks to intervene as a defendant in order to uphold or defend an agency action, it must establish: (a) that it would suffer a concrete injury-in-fact if the action were to be set aside, (b) that the injury would be fairly traceable to the setting aside of the agency action, and (c) that the alleged injury would be prevented if the agency action were to be upheld. Am. Horse Prot. Assoc., 200 F.R.D. at 156; see ...


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