DEFENDANTS’ MEMORANDUM OF POINTS AND ......IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN...

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA

SEMINOLE NATION OF OKLAHOMA, ) )

Plaintiff, ) ) v. ) Case No. CIV-06-556-SPS ) KENNETH L. SALAZAR, ) Magistrate Judge Steven P. Shreder Secretary of the Interior, et al., ) )

Defendants. ) ___________________________________ )

DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES

IN OPPOSITION TO DOSAR-BARKUS BAND’S MOTION TO INTERVENE

6:06-cv-00556-SPS Document 132 Filed in ED/OK on 09/02/11 of 26

i

TABLE OF CONTENTS

I. RELEVANT LITIGATION AND SETTLEMENT DISCUSSION HISTORY………….1

II. LEGAL FRAMEWORK………………………………………………………………….4

III. ARGUMENT……………………………………………………………………………..6

A. The Dosar-Barkus Band Has Not Met the Requirements for

Intervention As of Right…………………………………………………………..6

1. The Dosar-Barkus Band’s motion to intervene is untimely………………7

2. The Dosar-Barkus Band has not shown a legally cognizable

interest in this case………………………………………………………...8

3. The Dosar-Barkus Band will suffer no prejudice as a result

of being denied intervention in this case…………………………………12

4. Plaintiff adequately represents the Dosar-Barkus Band in this case……..15

B. The Dosar-Barkus Band Has Not Met the Requirements for

Permissive Intervention………………………………………………………….17

III. Conclusion……………………………………………………………………………….18


ii

TABLE OF AUTHORITIES CASES Alto Eldorado P’ship v. Cty. of Santa Fe, 634 F.3d 1170 (10th Cir. 2011) ...............................................................................................10 Am. Mar. Transp., Inc. v. United States, 870 F.2d 1559 (Fed. Cir. 1989) ..................................................................................................9 Banco Popular v. Greenblatt, 964 F.2d 1227 (1st Cir. 1992) ...................................................................................................7 Bottoms v. Dresser Indus., Inc., 797 F.2d 869 (10th Cir. 1986) ........................................................................................... 15-16 Chavez ex rel. M.C. v. New Mexico Pub. Educ. Dep’t, 621 F.3d 1275 (10th Cir. 2010) ........................................................................................... 10-11 City of Stilwell, Okla. v. Ozarks Rural Elec. Co-op. Corp., 79 F.3d 1038 (10th Cir. 1996) .................................................................................................17 Davis v. United States, 129 F.3d 951 (10th Cir. 1999) ....................................................................................................5 Davis v. United States, 343 F.3d 1282, 1293 (10th Cir. 2003) ......................................................................................14 Elliott Indus. Ltd. P’ship v. BP Am. Prod. Co., 407 F.3d 1091 (10th Cir. 2005) ............................................................................................. 5-6 FDIC v. Jennings, 816 F.2d 1488 (10th Cir. 1987) .................................................................................................4 Friends of Marolt Park v. U.S. Dep’t of Transp., 382 F.3d 1088 (10th Cir. 2004) ...............................................................................................10 Heartwood, Inc. v. U.S. Forest Serv., 316 F.3d 694 (7th Cir. 2003) .....................................................................................................7 Ill. Bell Tel. Co. v. F.C.C., 911 F.2d 776 (D.C. Cir. 1990) .................................................................................................13


iii

In re Kaiser Steel Corp., 998 F.2d 783 (10th Cir. 1993) ...................................................................................................5 In re Lease Oil Antitrust Litig., 570 F.3d 244 (5th Cir. 2009) .....................................................................................................7 Kan. Judicial Rev. v. Stout, 519 F.3d 1107 (10th Cir. 2008) ...............................................................................................11 Kelley v. Summers, 210 F.2d 665 (10th Cir. 1954) .................................................................................................15 Kiamichi R.R. Co. v. Nat’l Mediation Bd., 986 F.2d 1341 (10th Cir.1993) ..................................................................................................7 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ...................................................................................................................9 Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871 (1990) ...................................................................................................................7 Meridian Homes Corp. v. Nicholas W. Prassas & Co., 89 F.R.D. 552 (N.D.Ill.1981) ...................................................................................................10 Morgan v. McCotter, 365 F.3d 882 (10th Cir. 2004) .................................................................................................11 Nat’l Wildlife Fed’n v. Burford, 878 F.2d 422 (D.C. Cir. 1989) ...................................................................................................7 Nat’l Farm Lines v. I.C.C., 564 F.2d 381 (10th Cir. 1977) .................................................................................................15 New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495 (10th Cir. 1995) ...........................................................................................11, 12 New Orleans v. United Gas Pipeline Co., 732 F.2d 452 (5th Cir. 1984) ................................................................................... 9-10, 17, 18 Okla. ex rel. Edmondson v. Tyson Foods, Inc., 619 F.3d 1223 (10th Cir. 2010) .............................................................................................5, 7 Osage Tribe of Indians of Okla. v. United States, 85 Fed. Cl. 162 (2008) .........................................................................................................9, 12


iv

Pub. Serv. Co. of N.H. v. Patch, 136 F.3d 197 (1st Cir.1998) .......................................................................................................5 Pure Oil Co. v. Ross, 170 F.2d 651 (7th Cir. 1948) ...................................................................................................15 R & G Mortg. Corp. v. Fed. Home Loan Mortg. Corp., 584 F.3d 1 (1st Cir. 2009) ..........................................................................................................7 Salt Lake Tribune Publ’g Co. v. Mgmt. Planning, Inc., 454 F.3d 1128 (10th Cir. 2006) ...............................................................................................10 Sanguine, Ltd. v. U.S. Dep’t of Interior, 736 F.2d 1416 (10th Cir. 1984) .........................................................................................15, 16 Security Ins. Co. of Hartford v. Schipporeit, Inc., 69 F.3d 137 (7th Cir. 1995). .....................................................................................................6 Seminole Nation of Okla. v. Norton, 206 F.R.D. 1 (D.D.C. 2001) ......................................................................................... 13-14, 18 Smoke v. Norton, 252 F.3d 468 (D.C. Cir. 2001) ...................................................................................................7 Sw. Penn. Growth All. v. Browner, 121 F.3d 106 (3rd Cir. 1997) ...................................................................................................13 Texas v. United States, 523 U.S. 296 (1998) .................................................................................................................11 Trbovich v. United Mine Workers, 404 U.S. 528 (1972) .................................................................................................................15 United States v. 936.71 Acres of Land, 418 F.2d 551 (5th Cir. 1969) ...................................................................................................10 United States v. Wilson, 244 F.3d 1208 (10th Cir. 2001) ...............................................................................................10


v

Utah v. U.S. Dept. of the Interior, 210 F.3d 1193 (10th Cir. 2000) ............................................................................................... 12 Vinson v. Washington Gas Light Co., 321 U.S. 489 (1944) ...........................................................................................................12, 13 Wash. Elec. Co-op., Inc. v. Mass. Mun. Wholesale Elec. Co., 922 F.2d 92 (2nd Cir. 1990) .........................................................................................13, 17, 18 FEDERAL STATUTES 5 U.S.C. § 701 ...............................................................................................................................14 FEDERAL RULES Fed. Rule. Civ. Pro. 24 .......................................................................................................... 5-7, 17 Federal Practice and Procedure § 1909 ..........................................................................................16 Federal Practice and Procedure § 1916 ............................................................................................7 Federal Practice and Procedure § 3532 ....................................................................................11, 12 CONSTITUTIONS AND TREATIES United States Constitution, Article III .............................................................................................9 Treaty with the Seminole, Mar. 21, 1866 ......................................................................................14


1

On July 20, 2011, the Dosar-Barkus Band of the Seminole Nation of Oklahoma (“Dosar-

Barkus Band” or “the Band”) filed a motion, under Rule 24 of the Federal Rules of Civil

Procedure (Fed. R. Civ. P.), to intervene as a plaintiff in this case between the Seminole Nation

of Oklahoma and the federal government, specifically, the Secretary of the Interior, the Secretary

of the Treasury, and the Acting Special Trustee for American Indians. ECF No. 128. The

Band’s motion is factually and legally without merit and should be denied. The Band should not

be allowed to intervene, either as of right or by permission, in this case.1

The instant action involves the Seminole Nation’s accounting and mismanagement claims

regarding its tribal trust funds and non-monetary trust assets. The Nation has a number of

constituents, one of which – the Band – claims certain rights and interests and professes concern

that those rights and interests may be at risk from the Nation. The Band seeks to intervene in this

case involving the Nation’s trust accounting and trust mismanagement claims, so as to protect

those of the Band’s rights and interests that allegedly may be at risk. The Band’s request and

efforts are unreasonable and unwarranted and thus should be rejected.

I. RELEVANT LITIGATION AND SETTLEMENT DISCUSSION HISTORY

Defendants provide the following summary of the relevant litigation history so as to

provide proper factual context for this Court’s evaluation and determination of the Dosar-Barkus

Band’s intervention request and the Court’s understanding of the settlement discussions between

Plaintiff and Defendants, which span this case and the companion case in the CFC.

On December 29, 2006, Plaintiff Seminole Nation filed two lawsuits: this one and one in

the United States Court of Federal Claims (“CFC”). In this case, brought under the

1 This response was due September 1. Due to server problems between the Department of Justice and the United States Courts, Defendants were not able to file the response until September 2. Defendants are submitting a motion for leave to file out of time with this response.


2

Administrative Procedure Act (APA), 5 U.S.C. § 702, Plaintiff seeks declaratory and injunctive

relief, contending that Defendants have failed to provide Plaintiff with a historical accounting of

Plaintiff’s trust fund accounts and non-monetary trust resources. Plaintiff amended the

Complaint in this case in March, 2007, and March, 2008.

In the companion action in the CFC, Plaintiff seeks damages for the United States’

alleged mismanagement of Plaintiff’s trust funds and non-monetary trust assets (which relate

primarily to management of lease contracts on tribal trust lands). Plaintiff amended the CFC

Complaint in March, 2007, and March, 2008.

The parties have engaged in discovery (informal and formal) and settlement discussions

encompassing this case and the CFC companion case, off and on, since the inception of

litigation. In 2007 and 2008, the parties held meetings and discussions, produced documents and

data, conducted informational briefings, exchanged settlement-related correspondence, and

deliberated, but they were unable to reach agreement. On March 10, 2008, the parties informed

the Court that their settlement efforts had not been successful and that the case was not ripe for

settlement at that time. As a result, the Court reinstated the case in active litigation so that the

parties could conduct discovery, undertake dispositive motions practice, and prepare for trial. In

November, 2010, the parties requested that the Court refer the case to alternative dispute

resolution (ADR) before Magistrate Judge Kimberly West. The Court granted the request. The

parties made the same request in the CFC case in December, 2010, which was also granted.

The parties exchanged written settlement offers at Magistrate Judge West’s direction,

ECF 108, in February and March, 2011. Thereafter, the parties engaged in ADR sessions at the

federal courthouse in Muskogee, Oklahoma, on March 14, April 26, May 23, and June 27, 2011.

ECF Nos. 121, 124-126. Attending the settlement conferences were counsel for the parties; the


3

Principal Chief, the Assistant Principal Chief, and certain members of the Tribal Council and the

Tribal Court, of the Seminole Nation; attorneys from the Solicitor’s Office of the Interior

Department; the Superintendent of the Bureau of Indian Affairs (BIA), Wewoka Agency, or the

Deputy Regional Office for Trust Services, BIA Eastern Oklahoma Regional Office; and the

Fiduciary Trust Officer, Tulsa Urban Office, of the Office of the Special Trustee for American

Indians (OST). Id. At the June 27 session, the parties reached an agreement that the Court could

put this case into administrative closure. ECF No. 126. This Court did so on June 28, 2011.

ECF No. 127.

At the June 27 meeting, the parties’ counsel, leaders, and representatives reached an

agreement in principle about the proposed settlement of Plaintiff’s claims in this case and in

Plaintiff’s companion case in the CFC. Based on that agreement in principle, the parties have to

undertake several more steps before they can execute a formal written settlement agreement and

dispose of this case and Plaintiff’s CFC case with finality. Among other things, counsel for the

parties are currently negotiating the terms and conditions of a formal written settlement

agreement. Once they have the final version of the proposed settlement agreement, the parties’

counsel will recommend the proposed settlement to the principal decision-makers for the

respective parties, and obtain review, approval, and authorization by those decision-makers of

the proposed settlement. The persons involved in the settlement review and decision-making

process include Plaintiff’s Principal Chief, Assistant Principal Chief, and the 28 members of the

Tribal Council (who include two representatives of the Dosar-Barkus Band); and the appropriate

officials at the Departments of Justice (including the Associate Attorney General and the

Assistant Attorney General), the Department of the Interior (including the Solicitor), and the

Department of the Treasury (including the General Counsel). Once the parties have undertaken


4

such reviews and obtained such approvals and authorizations, counsel would be able to execute

the settlement agreement on behalf of the parties.

Twenty-two days after this case went into administrative closure, ECF No. 127, the

Dosar-Barkus Band filed its motion to intervene. ECF Nos. 128, 128-1. In its motion papers, the

Band claims that the basis of its request is to ensure that Plaintiff will allow the Band to

participate in any benefits that Plaintiff receives as a result of a settlement of Plaintiff’s trust

accounting and trust mismanagement claims. ECF 128-1 at 3; see also ECF 128 at 6. The Band

requests intervention only as to “the Seminole Nation's mineral rights claims,” without

specifying the scope of those claims or otherwise explaining what the claims are. ECF 128-1 at

27.

Upon motion by Plaintiff and Defendants, this Court directed that the parties can file their

responses to the Dosar-Barkus Band’s motion on or before September 1, 2011, and that the Band

can file its reply on or September 15, 2011.2

II. LEGAL FRAMEWORK

ECF 130.

To intervene as of right, a movant has to satisfy each of the four requirements set out in

Fed. R. Civ. Pro. 24(a). Rule 24(a) provides, in relevant part:

Upon timely motion, the court must permit anyone to intervene who: (1) is given an unconditional right to intervene by federal statute; or (2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that the disposition of the action may as a practical

2 By letter from its counsel to the Court dated August 5, 2011, the Dosar-Barkus Band requested essentially that the Court alter or amend its scheduling order to enjoin the parties from continuing with their settlement discussions during the pendency of the Band’s intervention request. Also by letter from its counsel to the Court on August 5, Defendants objected to the Band’s request as being improper, inappropriate, and non-compliant with the Rules of Civil Procedure and the local court rules. The Court has not taken action on the Band’s letter request, as far as Defendants are aware.


5

matter impair or impede the movant’s ability to protect that interest, unless existing parties adequately represent that interest.

In the view of the United States Court of Appeals for the Tenth Circuit, “[a]n intervenor

under Rule 24(a)(2) must meet the following requirements: (1) submit a timely application to

intervene, (2) demonstrate an interest in the property or transaction, (3) show that the intervenor's

ability to protect such interest might be impaired, and (4) demonstrate that the interest is not

adequately represented by the existing parties.” In re Kaiser Steel Corp., 998 F.2d 783, 790

(10th Cir. 1993) (citation omitted); see also Okla. ex rel. Edmondson v. Tyson Foods, Inc., 619

F.3d 1223, 1231 (10th Cir. 2010); Elliott Indus. Ltd. P'ship v. BP Am. Prod. Co., 407 F.3d 1091,

1103 (10th Cir. 2005)). The movant has to fulfill each of these preconditions. “The failure to

satisfy any one of them dooms intervention.” Pub. Serv. Co. of N.H. v. Patch, 136 F.3d 197, 204

(1st Cir.1998).

As to permissive intervention, Rule 24(b) provides, in pertinent part, that

(1) In General. On timely motion, the court may permit anyone to intervene who:

(A) is an unconditional right to intervene by federal statute; or (B) has a claim or defense that shares with the main action a common question of law or fact.

* * * *

(3) Delay or Prejudice. In exercising its discretion, the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties’ rights.

Thus, the movant has to “demonstrate that there is (1) a common question of law or fact,

and (2) independent jurisdiction. . . . Other than these two requirements . . . intervention under

24(b)(2) is entirely discretionary. . . . In exercising that discretion, the court must give some


6

weight to the impact of the intervention on the rights of the original parties.” Security Ins. Co. of

Hartford v. Schipporeit, Inc., 69 F.3d 1377, 1382 (7th Cir. 1995).

Rule 24(c) imposes certain procedural requirements on the movant: “A motion to

intervene must be served on the parties as provided in Rule 5. The motion must state the

grounds for intervention and be accompanied by a pleading that sets out the claim or defense for

which intervention is sought.”

III. ARGUMENT

As explained below, the Dosar-Barkus Band cannot meet any of the criteria for

intervention as of right or by permission. The Band cannot show that it has an unconditional

right to intervene by federal statute. Nor can it show that it has submitted a timely application to

intervene; that it has demonstrated an interest in the property or transaction; that its ability to

protect such interest might be impaired; and that the existing parties in the case do not adequately

represent its interests. Nor can it show that there is a common question of law or fact and that

there is independent jurisdiction for its claim. Nor can it show that it has complied with the

procedural requirements of Rule 24(c). Thus, this Court should deny the Band’s motion to

intervene.

A. The Dosar-Barkus Band Has Not Met the Requirements for Intervention As of Right.

The Dosar-Barkus Band has not met any of the criteria for intervening as of right in this

case. Its motion is untimely. It has shown no legally cognizable interest in the trust accounting

or trust mismanagement claims in the case. It has shown no impairment to its ability to protect

its legally cognizable interests, if any, if it were denied intervention as of right. It has shown no

inadequacy in representation of its interests by the existing parties. Hence, the Band should not

be granted intervention as of right.


7

1. The Dosar-Barkus Band’s motion to intervene is untimely.

“[A] motion for either type of intervention must be ‘timely.’” Smoke v. Norton, 252 F.3d

468, 469 (D.C. Cir. 2001), quoting Fed.R.Civ.P. 24. In examining the timeliness of a motion to

intervene, the Tenth Circuit considers the length of time since the movant knew of its interest in

the case, prejudice to the existing parties, and prejudice to the movant. Okla. ex rel. Edmondson,

619 F.3d at 1232. Timeliness is measured from the point at which the prospective intervenor

“knew or should have known that any of its rights would be directly affected by the litigation.”

Nat'l Wildlife Fed'n v. Burford, 878 F.2d 422, 433-34 (D.C.Cir.1989), rev'd on other grounds sub

nom. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871 (1990). “When the applicant appears to have

been aware of the litigation but has delayed unduly seeking to intervene, courts generally have

been reluctant to allow intervention.” 7C Charles A. Wright, Arthur R. Miller & Mary Kay Kane,

Federal Practice & Procedure § 1916, at 539-40 (3d ed. 2007). “[M]otions to intervene that will

have the effect of reopening settled cases are regarded with particular skepticism because such

motions tend to prejudice the rights of the settling parties.” R & G Mortg. Corp. v. Federal Home

Loan Mortg. Corp., 584 F.3d 1, 7 (1st Cir. 2009), citing In re Lease Oil Antitrust Litig., 570 F.3d

244, 250 (5th Cir.2009); Heartwood, Inc. v. U.S. Forest Serv., 316 F.3d 694, 700-01 (7th

Cir.2003); Banco Popular v. Greenblatt, 964 F.2d 1227, 1231 (1st Cir.1992).

There is no question that the Dosar-Barkus Band has waited until the eleventh hour to

seek intervention in this case. There is also no question that the Band had ample notice and

information about the status of the case, in particular, the settlement discussions about which the

Band seems to be concerned. The Dosar-Barkus Band is one of Plaintiff’s constituents, and it

has two members on Plaintiff’s tribal council. ECF No. 128, at 19. Thus, the Band knew or

should have known about the settlement meetings, discussions, briefings, informational


8

exchanges, and other communications, between Plaintiff and Defendants, which have been

occurring, off and on, since the inception of Plaintiff’s litigation in December, 2006. Further, the

Band knew or should have known about the settlement meetings and other communications

between the parties and Magistrate Judge West. ECF Nos. 108, 111, 114, 115, 116, 119, 121,

124-126. Thus, the Band’s efforts to intervene in the litigation at this juncture are untimely,

unreasonable, and inappropriate, especially given the parties’ progress in resolving Plaintiff’s

claims in this case and Plaintiff’s companion case without the need for protracted litigation. This

Court should deny the Band’s motion.

2. The Dosar-Barkus Band has not shown a legally cognizable interest in this case.

In its motion papers, the Dosar-Barkus Band expresses the general concern that, at some

point in the future, Plaintiff may treat the Band unfairly in the “division” or “distribution” of any

proceeds that Plaintiff may obtain from the settlement of this case and the CFC companion case.

See, e.g., ECF 128-1, at 1, 3, 4, 7, 9, 10, 11. This allegation is the extent of the detail in the

Band’s assertions regarding the interests that it seeks to protect or vindicate by moving to

intervene in this case. This allegation is not sufficient to confer on the Band a legally cognizable

or protectable interest in this case.

As this Court is aware, this case involves Plaintiff’s trust accounting and trust

mismanagement claims against Defendants. Similarly, Plaintiff’s CFC companion case involves

Plaintiff’s claims for the damages that Plaintiff asserts resulted from the United States’ alleged

mismanagement of Plaintiff’s trust funds and non-monetary trust resources. Yet nowhere in the

Dosar-Barkus Band’s motion papers does the Band state an interest or claim regarding Plaintiff’s

trust funds, Plaintiff’s non-monetary trust assets, or the accounting or the management of those

funds and non-monetary assets. That is because the Band lacks the legally requisite standing to


9

address the accounting or the management of Plaintiff’s trust funds and non-monetary trust

assets.3

As noted above, the core claims in this case are those relating to Plaintiff’s assertions

about the trust accounting duties and responsibilities allegedly owed by Defendants to Plaintiff.

Similar, the core claims in the CFC companion case are those relating to Plaintiff’s assertions

about the mismanagement of Plaintiff’s trust funds and non-monetary trust assets alleged

committed by the United States and the financial injury to Plaintiff that allegedly flowed

therefrom. The Dosar-Barkus Band has no role or stake in the prosecution of those claims. The

fact that the Band may stand to gain in the event that Plaintiff obtains proceeds from any

settlement that Plaintiff and Defendants may be able to work out in this case and the CFC

companion case does not endow the Band with the capacity to intervene as of right. See New

Orleans, 737 F.2d at 464 (“The ‘real party in interest’ is the party who, by substantive law,

In other words, the Band is not the real party in interest in this case (or the companion

case in the CFC); the Band does not have the legally protectable interest. The real party in

interest as to the trust accounting and trust mismanagement claims is Plaintiff. See, e.g., Osage

Tribe of Indians of Oklahoma v. United States, 85 Fed.Cl. 162, 170 (2008), quoting New Orleans

v. United Gas Pipeline Co., 732 F.2d 452, 464 (5th Cir. 1984)); see also Am. Mar. Transp., Inc.

v. United States, 870 F.2d 1559, 1562 (Fed. Cir. 1989) (defining a legally protectable interest as

“‘one which the substantive law recognizes as belonging to or being owned by the applicant’”).

3 The jurisdiction of federal courts is limited to “cases” and “controversies.” U.S. Const., Art. III, § 2. No case or controversy exists where a plaintiff lacks standing to make the claims asserted. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). To establish standing, a plaintiff must show, at a minimum, an “injury in fact,” i.e., an invasion of a legally protected interest that is concrete and particularized and actual or imminent (not conjectural or hypothetical); a causal connection between the injury and the conduct complained of, i.e., the injury must be fairly traceable to the action of the defendant and not the result of some action of a third party; and that it is likely the injury will be redressed by a favorable decision. Id. at 560-61.


10

possesses the right sought to be enforced, and not necessarily the person who will ultimately

benefit from the recovery’”), quoting United States v. 936.71 Acres of Land, 418 F.2d 551, 556

(5th Cir.1969)); see also Meridian Homes Corp. v. Nicholas W. Prassas & Co., 89 F.R.D. 552,

554 (N.D. Ill.1981) (denying intervention to parties who had a right to a portion of a joint

venturer's profits in a dispute between joint venturers; despite their right to proceeds from the

litigation, the would-be intervenors' “lack of status as joint venturers” defeats several of the

requirements to support intervention, including the interest requirement).

The claim that the Dosar-Barkus Band seeks to address – the one regarding Plaintiff’s

possible disposition of the proceeds of any settlement that Plaintiff may acquire from any

settlement that Plaintiff may negotiate, finalize, and execute with Defendants in this case and

Plaintiff’s CFC case – is entirely speculative, unripe, and therefore non-justiciable. Therefore, it

cannot serve as a basis for allowing the Band to intervene in this case.

“Ripeness doctrine is rooted both in the jurisdictional requirement that Article III courts

hear only ‘cases and controversies’ and in prudential considerations limiting our jurisdiction.”

Alto Eldorado P’ship v. Cty. of Santa Fe, 634 F.3d 1170, 1173 (10th Cir. 2011) citing Salt Lake

Tribune Publ'g Co. v. Mgmt. Planning, Inc., 454 F.3d 1128, 1140 (10th Cir.2006). To evaluate

whether an issue is ripe, a court examines “(1) the fitness of the issue for judicial resolution and

(2) the hardship to the parties of withholding judicial consideration.” Chavez ex rel. M.C. v. New

Mexico Public Educ. Dept., 621 F.3d 1275, 1281 (10th Cir. 2010), quoting United States v.

Wilson, 244 F.3d 1208, 1213 (10th Cir.2001). These two factors are sufficient to guide a

decision on ripeness. Friends of Marolt Park v. U.S. Dep’t of Transp., 382 F.3d 1088, 1094 n.2

(10th Cir. 2004). “A case meets the first prong if it does not involve uncertain or contingent

events that may not occur at all (or may not occur as anticipated).” Chavez, 621 F.3d at 1281,


11

citing New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1499 (10th Cir. 1995). The

second prong addresses whether the challenged action is a “direct and immediate dilemma for

the parties.” Id. (quoting Richardson, 64 F.3d at 1499. The ripeness question is primarily one of

timing. Id., citing Kan. Judicial Rev. v. Stout, 519 F.3d 1107, 1116 (10th Cir. 2008); Richardson,

64 F.3d at 1499.

The critical consideration is whether the Dosar-Barkus Band’s alleged injury is certain or

uncertain to occur. Richardson, 64 F.3d at 1499 (quoting 13A Charles Alan Wright, Arthur R.

Miller & Edward H. Cooper, Federal Practice and Procedure § 3532, at 112 (2d ed.1984)) (in

evaluating ripeness the “central focus is on ‘whether the case involves uncertain or contingent

future events that may not occur as anticipated, or indeed may not occur at all’”); Texas v.

United States, 523 U.S. 296, 300 (1998) (claim not ripe if it rests upon contingent future events

that may not occur as anticipated, or indeed may not occur at all); Morgan v. McCotter, 365 F.3d

882, 890 (10th Cir. 2004) (“the ripeness inquiry asks whether the challenged harm has been

sufficiently realized . . .”). According to the Band, if Plaintiff and Defendants reach a monetary

settlement, Plaintiff may undertake a distribution of the settlement proceeds in a manner that

may cause disadvantage to the Band. The Band’s claim typifies “uncertain or contingent events

that may not occur at all (or may not occur as anticipated).” Chavez, 621 F.3d at 1281.

Morgan, supra, is instructive here. In that case, a plaintiff contended that his termination

“for cause” from a civil service position would impair his ability to obtain another career civil

service position, even though he had not actually applied for a position and he had not

demonstrated that he intended to do so. On review, the court held that the ripeness doctrine

precluded entertaining a “controversy . . . [that] remains purely theoretical.” 365 F.3d at 891. So

too here, the possibility that the Dosar-Barkus Band will be wrongfully excluded from enjoying


12

the proceeds of a settlement is purely hypothetical. The Band’s “claimed harms are contingent,

not certain or immediate.” Utah v. U.S. Dep’t of the Interior, 210 F.3d 1193, 1198-99 (10th Cir.

2000), citing Texas, 523 U.S. at 300. In other words, they unquestionably involve “uncertain or

contingent future events that may not occur as anticipated, or indeed may not occur at all.”

Richardson, 64 F.3d at 1499 (quoting 13A Charles Alan Wright, Arthur R. Miller & Edward H.

Cooper, Federal Practice and Procedure § 3532, at 112 (2d ed.1984)); cf. Osage Tribe, 85 Fed.Cl.

at 173 (“any problems with the ultimate distribution of damages awarded are speculative, at

best.”). Thus, the Band’s intervention request should be rejected.

3. The Dosar-Barkus Band will suffer no prejudice as a result of being denied intervention in this case.

Denial of intervention will not prejudice the Dosar-Barkus Band. The Band is not

interested in or concerned about the claims raised by Plaintiff in this case or in the CFC

companion case. The subject of real interest or concern to the Band – Plaintiff’s “distribution”

of any proceeds that may result from any settlement in this case and in Plaintiff’s companion

case in the CFC – is not and has never been at issue in this case or in Plaintiff’s companion case.

The subject is completely irrelevant to the claims raised by Plaintiff in this case or the CFC

companion case and to the issues addressed by the parties in the course of the litigation.

Therefore, it cannot provide a basis for the Band’s intervention. Rather, it should serve as the

reason for denying the Band’s intervention.

Allowing the Dosar-Barkus Band to intervene in this case is to invite the Band to

introduce a whole new set of claims and issues that Plaintiff and Defendants had neither

addressed nor anticipated addressing. It is a fundamental principle that a party seeking to

intervene in a case – such as the Dosar-Barkus Band – cannot expand the scope of a lawsuit by

injecting issues raised by neither of the existing parties. Vinson v. Washington Gas Light Co.,


13

321 U.S. 489, 498 (1944) (“[A]n intervenor is admitted to the proceeding as it stands, and in

respect of the pending issues, but is not permitted to enlarge those issues”); Ill. Bell Tel. Co. v.

F.C.C., 911 F.2d 776, 786 (D.C. Cir. 1990) (“An intervening party may join issue only on a

matter that has been brought before the court by another party”); FDIC v. Jennings, 816 F.2d

1488, 1491-92 (10th Cir.1987) (affirming denial of intervention where, although movant had

general interest in subject of lawsuit, intervention would interject new issues separate and

distinct from those being litigated); Wash. Elec. Co-op., Inc. v. Mass. Mun. Wholesale Elec. Co.,

922 F.2d 92, 97 (2nd Cir. 1199) (“Intervention cannot be used as a means to inject collateral

issues into an existing action”) (citations omitted); Sw. Penn. Growth All. v. Browner, 121 F.3d

106, 121 (3rd Cir. 1997).

The most pertinent precedent on this point may be the decision in Seminole Nation v.

Norton, 206 F.R.D. 1, 6 (D.D.C. 2001), in which the Dosar-Barkus Band also sought

intervention improperly so that it could raise issues that were entirely extraneous to those in that

case. There, the Tribe had filed suit seeking declaratory and injunctive relief against the

Department of the Interior (“Interior”), which had refused to recognize certain amendments to

the Seminole Constitution.4

4 The amendments at issue would have expelled two bands of Seminole Freedmen, including the Dosar-Barkus Band, from the Tribe. Interior refused to acknowledge those amendments, and further it informed the Tribe that the agency “will not recognize any further resolutions or actions of the General Council without the participation of the Freedmen.” 206 F.R.D. at 4.

The Band sought to intervene and raise several issues, including the

Band’s right to participate in benefits derived from a particular judgment fund that had been

created with the proceeds of judgments issued by the Indian Claims Commission in

compensation of the Tribe for the loss of aboriginal lands in Florida in 1823, before the Band and


14

other Freedmen were recognized by Congress as belonging to the Tribe in 1866.5

The court in Seminole Nation denied the Dosar-Barkus Band’s intervention request,

partly because the Band sought greatly to expand the scope of the litigation. The court found that

At the same

time, the Band was seeking to litigate the same issues in a lawsuit then pending in Oklahoma.

See Davis v. United States, 192 F.3d. 951 (10th Cir. 1999); Davis v. United States, 343 F.3d

1282 (10th Cir. 2003), cert. denied, 542 U.S. 937 (2004).

In contrast to the issues raised in the Freedmen's proposed complaint, the sole issue presented to the Court by the Seminole Nation concerns the role of the BIA in the process of amending the Seminole Constitution. The only link between that issue and the ones advanced by the Freedmen is that three of the proposed amendments to the Seminole Constitution concern the Freedmen's status in the tribe. The single claim brought by Seminole Nation does not call upon this Court to consider the impact of the proposed constitutional amendments upon the Freedmen. Quite to the contrary, the only issue presented for this Court's consideration, pursuant to the Administrative Procedures [sic] Act (“APA”), 5 U.S.C. § 701 et seq., is the reasonableness of the Department of the Interior's determination not to recognize the recent amendments to the Seminole Nation's Constitution, some of which purport to remove the Freedmen from the tribe.

206 F.R.D. at 6.

In this case, while the Dosar-Barkus Band has stated its intentions only in vague terms in

its motion papers, the Band does not appear intent on repeating its prior litigation mistakes by

seeking to raise a host of extraneous issues upon intervention, as it did in Seminole Nation v.

Norton.6

5 See Treaty With the Seminole, Mar. 21, 1866, U.S.-Seminole Nat., 14 Stat. 755, 1866 WL 8564, at *2; Seminole Nation v. Norton, 206 F.R.D. at 4;

Nonetheless, the same principle applies. How Plaintiff deals with the proceeds of any

settlement that the parties work out, finalize, and execute in this case and Plaintiff’s CFC

companion case is not at issue in this case (or the CFC case). Thus, as in Seminole Nation v.

Davis v. United States, 192 F.3d 951, 954-55 (10th Cir.1999). 6 It is admittedly difficult, if not impossible, to ascertain the Dosar-Barkus Band’s true intent, given that the Band has not complied with the procedural requirements of Fed. R. Civ. Pro. 24(c) and filed a complaint in intervention. Such a document could have shed some light on the Band’s plans.


http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=506&FindType=Y&ReferencePositionType=S&SerialNum=1999215594&ReferencePosition=954�

http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=506&FindType=Y&ReferencePositionType=S&SerialNum=1999215594&ReferencePosition=954�

15

Norton, the outcome of the existing litigation cannot impair or prejudice the Band’s rights or

interests. Id. at 9 (“Because the action before the Court does not call upon the Court to address

the right of the Freedmen to money in the Judgment Fund . . . it is clear that these potential

rights will not be impaired by the judgment of this Court.”) See also Kelley v. Summers, 210

F.2d 665 (10th Cir. 1954) (citing Pure Oil Co. v. Ross, 170 F.2d 651 (7th Cir., 1948) (“To

authorize an intervention as a matter of right under Rule 24(a) the intervenor must have an

interest in the subject matter of the litigation of such a nature that he will gain or lose by the

direct legal operation of the judgment.”). This Court should deny the Band’s intervention

request.

4. Plaintiff adequately represents the Dosar-Barkus Band in this case. The Dosar-Barkus Band bears the burden of showing that representation by existing

parties may be inadequate. The burden is not a heavy one. The Band needs only show the

“potential” for inadequate representation. In Sanguine, Ltd. v. U.S. Dept. of Interior, 736 F.2d

1416, 1419 (10th Cir. 1984), the Tenth Circuit held that

[a]lthough an applicant for intervention as of right bears the burden of showing inadequate representation, that burden is the ‘minimal’ one of showing that representation ‘may’ be inadequate.” Trbovich v. United Mine Workers, 404 U.S. 528, 538 n. 10, 92 S.Ct. 630, 636 n. 10, 30 L.Ed.2d 686 (1972); National Farm Lines v. ICC, 564 F.2d 381, 383 (10th Cir.1977). An applicant may fulfill this burden by showing collusion between the representative and an opposing party, that the representative has an interest adverse to the applicant, or that the representative failed in fulfilling his duty to represent the applicant's interest. See generally 7A C. Wright & A. Miller, Federal Practice and Procedure § 1909 at 523-32 (1972).

Notwithstanding the low threshold, the Dosar-Barkus Band cannot meet its burden.

Thus, its motion to intervene should be rejected.

Bottoms v. Dresser Industries, Inc., 797 F.2d 869 (10th Cir. 1986), is instructive here. In

that case, the plaintiff (Bottoms) sued a company (Dresser) for royalties due on a patent. A


16

would-be intervenor (Foster) alleged that, under a partnership agreement with Bottoms, Foster

possessed a one-half interest in any royalty payments awarded. 797 F.2d at 871-72. The Tenth

Circuit upheld the trial court’s denial of intervention on the grounds that Bottoms already

adequately represented Foster’s interests, even though Bottoms and Foster were bitterly at odds.7

Although there obviously is a serious dispute between Bottoms and Foster, Bottoms has an overwhelming interest in maximizing the amount of royalties Dresser owes under the licensing agreement. In this sense, if Bottoms and Foster are partners or co-owners of the patent as Foster claims, . . . [e]ach has an identical interest and motivation in obtaining the greatest possible recovery. Because the interests of Bottoms and Foster are identical, Foster must make “a concrete showing of circumstances . . . that make [Bottoms'] representation inadequate.”

Id. at 871-73. The Court found that, because Bottoms and Foster had identical interests in the

underlying litigation – namely, securing the largest possible recovery against Dresser – Foster

could not establish inadequacy of representation.

Id. at 872, quoting 7A C. Wright & A. Miller, Federal Practice & Procedure § 1909, at 529

(1972). Moreover, this “concrete showing” must be adequate to overcome a presumption of

adequate representation, where the interests of the would-be intervenor, and those of an existing

party, are perfectly aligned. Id. at 872-73. The Tenth Circuit identified three ways in which the

presumption can be overcome: “This presumption may be overcome by showing that there is

collusion between the representative and an opposing party, that the representative has an interest

adverse to the applicant, or that the representative failed to represent the applicant's interest.”

Id., citing Sanguine, Ltd, 736 F.2d at 1419.

The Dosar-Barkus Band has demonstrated none of those factors in this case as to the

claims or issues raised in this case and the CFC companion case. The Band is one of Plaintiff’s

7 Foster claimed that Bottoms had falsely claimed that the patent had no value, absconded with it, and secured the patent for himself. Id. at 871-872.


17

constituents. Two representatives of the Band are members of Plaintiff’s tribal council.

Nowhere in its papers has the Band shown that Plaintiff has not vigorously pursued the best

possible settlement, that Plaintiff’s priorities in maximizing a settlement of Plaintiff’s lawsuits in

any way differ from those of the Band, or that the parties have somehow conspired to achieve a

settlement that is less than optimal for Plaintiff. Accordingly, this Court should deny the Band’s

request for intervention. See Osage, 85 Fed.Cl. at 174-76; New Orleans, 732 F.2d at 472-72; see

also Kiamichi R.R. Co. v. Nat’l Med. Bd., 986 F.2d 1341, 1345 (10th Cir.1993); City of Stilwell,

Okla. v. Ozarks Rural Elec. Co-op. Corp., 79 F.3d 1038, 1042 (10th Cir. 1996); Wash. Elec., 922

F.2d at 98 (“Where there is an identity of interest between a putative intervenor and a party,

adequate representation is assured.”).

B. The Dosar-Barkus Band Has Not Met the Requirements for Permissive Intervention.

The Dosar-Barkus Band has moved, as an alternative, for permissive intervention under

Fed. R. Civ. Pro. 24(b). The Band has not met the requirements for permissive intervention,

however. It has not shown that it has an unconditional right by statute to intervene or a claim or

defense that overlaps legally or factually with the main action. Therefore, its motion should be

denied.

Given the Dosar-Barkus Band’s stated concern about Plaintiff’s “distribution” of any

proceeds from any settlement that the parties may negotiate, finalize, and execute in this case and

Plaintiff’s CFC companion case, the Band cannot identify any issues of law or fact that could be

in common with the claims raised by Plaintiff in this case (or, for that matter, in the CFC

companion case), as required by Rule 24(b), because the Band’s issue or concern is simply and

completely extraneous to the claims or issues that have been framed by Plaintiff for resolution

herein. Denial of the Band’s permissive intervention request would not be unprecedented,


18

especially where there is an uncontested presumption of adequate representation. See Seminole

Nation v. Norton, 206 F.R.D. at 11 (denying permissive intervention); see also New Orleans, 732

F.2d at 472 fn. 40 (upholding the denial of permissive intervention); Wash. Elec., 922 F.2d at 97

same). Further, allowing the Band permissive intervention, especially at this late hour and with

the Band’s intent to import issues and claims relating to Plaintiff’s possible distribution of

potential settlement proceeds, all of which are extraneous to those presented in the litigation, will

“unduly delay or prejudice the adjudication of the original parties' rights.” Rule 24(b)(3).

Plaintiff and Defendants have devoted several years of effort, including litigation, discovery, and

settlement discussions, to reach the threshold of a resolution of Plaintiff’s claims. The parties’

efforts should not be lost, squandered, sidetracked, or deterred by the Band’s attempt to intervene

and introduce irrelevant issues and claims into the litigation.

III. Conclusion

For the foregoing reasons, this Court should deny the Dosar-Barkus Band’s motion to

intervene.

Respectfully submitted on this 2nd day of September, 2011,

IGNACIA S. MORENO Assistant Attorney General /s/ John P. Tustin PETER KRYN DYKEMA (DC 419349) JOHN P. TUSTIN (TX 24056458) ANTHONY P. HOANG United States Department of Justice Environment Division Natural Resources Section P.O. Box 663 Washington, D.C. 20044-0663 Telephone: 202-305-3022 Telephone: 202-305-0436 Telephone: 202-305-0241 Facsimile: 202-353-2021


19

[email protected] [email protected] [email protected]

Attorneys for Defendants

OF COUNSEL: SHANI N. WALKER JOSHUA EDELSTEIN Office of the Solicitor United States Department of the Interior Washington, D.C. 20240 REBECCA SALTIEL THOMAS KEARNS Office of the Chief Counsel Financial Management Service United States Department of the Treasury Washington, D.C. 20227


20

CERTIFICATE OF SERVICE I hereby certify that, on September 2, 2011, I electronically filed the foregoing DEFENDANTS’ OPPOSITION TO THE DOSAR-BARKUS BAND’S MOTION TO INTERVENE with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to the following:

Eugene K. Bertman [email protected]

Jennifer H. McBee [email protected] Attorneys for Plaintiffs

Jon Velie [email protected] Attorney for Applicant Intervenor Plaintiff /s/ John P. Tustin JOHN P. TUSTIN


DEFENDANTS’ MEMORANDUM OF POINTS AND ......IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN...

Documents

Transcript of DEFENDANTS’ MEMORANDUM OF POINTS AND ......IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN...