State of Oklahoma v. Tyson Foods, Inc., et al

Filing

[9799277] Affirmed. Terminated on the merits after oral hearing. Written, signed, published. Judges Tacha, dissenting; Ebel and Hartz, author. Mandate to issue.

State of Oklahoma v. Tyson Foods, Inc., et al

Case: 09-5134

Document: 01018500198

FILED Date Filed: U n i t e d States Court 1 Appeals 09/21/2010 Page: of T e n t h Circuit

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S e p t e m b e r 21, 2010
PUBLISH U N I T E D STATES COURT OF APPEALS T E N T H CIRCUIT
E l i s a b e t h A. Shumaker C l e r k of Court

S T A T E OF OKLAHOMA, ex rel. W . A . DREW EDMONDSON, in his c a p a c i t y as ATTORNEY GENERAL O F THE STATE OF OKLAHOMA a n d OKLAHOMA SECRETARY OF T H E OFFICE OF ENVIRONMENT J . D . STRONG in his capacity as the T R U S T E E FOR NATURAL R E S O U R C E S FOR THE STATE OF OKLAHOMA, P l a i n t i f f s - Appellees, v. T Y S O N FOODS, INC.; TYSON P O U L T R Y , INC.; TYSON CHICKEN, I N C . ; COBB-VANTRESS, INC.; G E O R G E ' S , INC.; GEORGE'S F A R M S , INC.; PETERSON FARMS, I N C . ; SIMMONS FOODS, INC.; C A L - M A I N E FARMS, INC.; CALM A I N E FOODS, INC.; CARGILL, I N C . ; CARGILL TURKEY P R O D U C T I O N , LLC, D e f e n d a n t s - Appellees, ___________________________ C H E R O K E E NATION, Movant - Appellant. N o . 09-5134

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A P P E A L FROM THE UNITED STATES DISTRICT COURT F O R THE NORTHERN DISTRICT OF OKLAHOMA ( D . C . NO. 4:05-CV-00329-GKF-PJC) A . Diane Hammons, Attorney General, (Sara E. Hill, Assistant Attorney General, w i t h her on the briefs), Cherokee Nation, Tahlequah, Oklahoma, for Movant Appellant. J a y T. Jorgensen, Sidley Austin LLP, Washington, D.C., (Virginia A. Seitz, T h o ma s C. Green, Mark D. Hopson, Sidley Austin LLP, Washington, D.C.; R o b e r t W. George, Vice President and Associate General Counsel, Bryan Burns, T i mo t h y T. Jones, Tyson Foods, Inc., Springdale, Arkansas; Michael R. Bond, K u t a k Rock LLP, Fayetteville, Arkansas, with him on the briefs for Defendants A p p e l l e e s Tyson Foods, Inc., Tyson, Poultry, Inc., Tyson Chicken, Inc., and C o b b - V a n t r e s s , Inc.) (Gary V. Weeks, Woodson W. Bassett III, James M. Graves, V i n c e Chadick, K.C. Dupps Tucker, Bassett Law Firm, Fayetteville, Arkansas; R a n d a l l E. Rose, George W. Owens, Owens Law Firm, P.C., Tulsa, Oklahoma, w i t h him on the briefs for Defendants - Appellees, George's, Inc. and George's F a r ms , Inc.) (Robert P. Redemann, Perrine, McGivern, Redemann, Reid, Berry & T a y l o r , P.L.L.C., Tulsa, Oklahoma; Robert E. Sanders, Young Williams, P.A., J a c k s o n , Mississippi, with him on the briefs for Defendants - Appellees CalM a i n e Farms, Inc. and Cal-Maine Foods, Inc.) (John H. Tucker, Theresa Noble H i l l , Rhodes, Hieronymus, Jones, Tucker & Gable, PLLC, Tulsa, Oklahoma; D e l ma r R. Ehrich, Bruce Jones, Krisann C. Kleibacker Lee, Faegre & Benson L L P , Minneapolis, Minnesota, with him on the briefs for Defendants - Appellees C a r g i l l , Inc. and Cargill Turkey Production, Inc.) (John R. Elrod, Vicki Bronson, C o n n e r & Winters, L.L.P., Fayetteville, Arkansas, with him on the briefs for D e f e n d a n t - Appellee Simmons Foods, Inc.) (A. Scott McDaniel, Nicole M. L o n g w e l l , Philip D. Hixon, McDaniel Hixon Longwell & Acord, PLLC, Tulsa, O k l a h o ma , with him on the briefs for Defendant - Appellee Peterson Farms, Inc.), f o r Defendants - Appellees. I n g r i d L. Moll, Motley Rice LLC, Hartford, Connecticut, (Frederick C. Baker, M o t l e y Rice, LLC, Mount Pleasant, South Carolina; Louis W. Bullock, Robert M. B l a k e mo r e , Bullock Bullock & Blakemore PLLC, Tulsa, Oklahoma; M. David R i g g s , Richard T. Garren, Robert A. Nance, David P. Page, Sharon Gentry, Riggs, A b n e y , Neal, Turpen, Orbison & Lewis, Tulsa, Oklahoma, with her on the briefs), f o r Plaintiff - Appellee.

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B e f o r e TACHA, EBEL, and HARTZ, Circuit Judges. H A R T Z, Circuit Judge. T h e Cherokee Nation (the Nation) appeals the district court's denial of its mo t i o n to intervene in a dispute between the State of Oklahoma (the State) and D e f e n d a n t s - A p p e l l e e s (collectively, Tyson). The State had sued Tyson because of T y s o n ' s disposal of poultry waste in the Illinois River Watershed (IRW). The I R W , in which both the State and the Nation claim interests, covers approximately o n e million acres straddling the Oklahoma-Arkansas border. Within it are h u n d r e d s of large-scale poultry farms. Tyson operates some of these farms and c o n t r a c t s with other farmers to raise poultry until maturity, using methods e s t a b l i s h e d by Tyson; Tyson collects the poultry at maturity for processing and ma r k e t i n g . These poultry-growing operations generate hundreds of thousands of t o n s of poultry waste each year. Raising a number of legal theories, the State sought monetary relief for past a n d future damages and an injunction against alleged pollution. More than three y e a r s into the litigation, Tyson moved to dismiss the monetary claims on the g r o u n d that the Nation was a required party that had not been joined. The State a r g u e d that the Nation was not a required party but also negotiated an agreement i n which the Nation purportedly assigned the State its interests in the litigation.

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T h e district court ruled that the agreement was invalid and granted Tyson's mo t i o n , restricting the previously scheduled trial to the State's claims for i n j u n c t i v e and other equitable relief. Nineteen days before trial the Nation moved to intervene so that it could p r o c e e d on three claims against Tyson for injunctive and monetary relief. The d i s t r i c t court denied the motion as untimely. Although the Nation argued that it h a d moved promptly after learning that the State could not adequately represent t h e Nation's interests in the litigation, the district court ruled that the Nation had d e l a y e d too long, that Tyson would be severely prejudiced by the lengthy trial d e l a y that would be necessary if the Nation were permitted to intervene, and that t h e Nation would not be prejudiced by a denial of intervention. We have jurisdiction under 28 U.S.C. § 1291, see WildEarth Guardians v. U . S . Forest Service, 573 F.3d 992, 994 (10th Cir. 2009) (order denying i n t e r v e n t i o n was final), and affirm. The district court did not abuse its discretion i n denying the motion to intervene. In particular, the district court could properly f i n d that the Nation had unduly delayed seeking to intervene because from the o u t s e t of the litigation it had no reason to believe that the State would represent i t s interests in monetary relief. I. BACKGROUND A. E a r l y Stages of the Litigation

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O n June 13, 2005, the State sued Tyson in the United States District Court f o r the Northern District of Oklahoma. According to the initial complaint, Tyson a n d the individual poultry farmers improperly disposed of poultry waste by both s t o r i n g it and using it as fertilizer on lands within the IRW. Because the waste c o n t a i n s high levels of certain chemicals and microbes that are harmful to the e n v i r o n me n t and human health, these disposal practices allegedly result in injury t o the lands, waters, and biota of the IRW. The complaint further alleged that T y s o n is responsible for these disposal practices and thus the resultant injury to t h e IRW. T h e State brought suit as owner of the streams and rivers of the IRW, as h o l d e r of all natural resources within the State's boundaries "in trust on behalf of a n d for the benefit of the public," Complaint at 3, State of Oklahoma v. Tyson F o o d s , Inc., No. 05-cv-0329 JOE-SAJ (N.D. Okla. June 13, 2005), and as trustee u n d e r the federal Comprehensive Environmental Response, Compensation, and L i a b i l i t y Act (CERCLA) for natural resources within Oklahoma. The initial c o mp l a i n t stated nine causes of action. Two causes of action were under C E R C L A , 42 U.S.C. § 9607. The first CERCLA claim sought recovery of costs ( s u c h as the costs of monitoring and evaluating water quality and biota in the I R W ) incurred by the State in responding to Tyson's disposal practices, as well as a declaration that Tyson is responsible for all future response costs that the State w o u l d incur. In the second CERCLA claim the State--acting as "CERCLA
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t r u s t e e for `natural resources' in, belonging to, managed by, held in trust by, a p p e r t a i n i n g to or otherwise controlled by" the State--sought damages for injury t o and loss of natural resources, including the cost of restoring or replacing the i n j u r e d resources, the value of lost services resulting from the injury to the r e s o u r c e s , and the reasonable cost of assessing injury to the resources. Id. at 21. The State's third and fourth claims were based on state and federal nuisance law. They alleged that Tyson's disposal practices unreasonably "inva[ded,] interfere[d] w i t h and impair[ed]" the State's and the public's beneficial use of the IRW, and s o u g h t damages (including punitive damages) and an injunction requiring Tyson t o cease its disposal methods and remediate the IRW. Id. at 24. The fifth claim s o u g h t damages and injunctive relief for trespass on the State's property interests i n the IRW. The State's sixth and seventh claims sought civil penalties and i n j u n c t i v e relief for violations of the Oklahoma Environmental Quality Code, see O k l a . Stat. tit. 27A, §§ 2-6-105, 2-3-504; the Oklahoma Agricultural Code, see O k l a . Stat. tit. 2, §§ 2-16, 2-18.1; the Oklahoma Registered Poultry Feeding O p e r a t i o n s Act, see Okla. Stat. tit. 2, §§ 10-9.7, 10.9-11; and certain provisions of t h e Oklahoma Administrative Code, see Okla. Admin. Code § 35:17-5-5. The S t a t e ' s eighth claim was for unjust enrichment, seeking restitution and

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d i s g o r g e me n t of profits from the alleged improper waste disposal. A ninth claim w a s later voluntarily dismissed with prejudice. 1 The complaint did not mention the Nation. But the Nation was aware of t h e litigation from the outset. In March 2005, when alerted to the State's i n t e n t i o n to file suit, Chad Smith, Principal Chief of the Nation, wrote the f o l l o w i n g in a letter to Oklahoma's Attorney General: I ' v e had the opportunity to meet with a number of poultry growers in D e l a w a r e County, a quarter of whom are Cherokee. They are c o n c e r n e d that the proposed lawsuit would, in effect, put them out of b u s i n e s s . I advised them that I would contact your office and offer o u r assistance and services in any way that might be helpful to f a c i l i t a t e discussions to reconcile the poultry litter problem affecting w a t e r quality in Northeastern Oklahoma. A p l t . App., Vol. 4 at 688. This letter reflected the Nation's obvious interest in the subject matter of t h e lawsuit. Much of the IRW is within the boundaries of the Cherokee Nation a n d , as clearly emerged later in the lawsuit, the Nation claims that various federal l a w s and treaties have given it ownership and control over lands, waters, and n a t u r a l resources of the IRW since before Oklahoma statehood. Yet despite these c l a i ms regarding the IRW, nothing in the record indicates that before 2009 the N a t i o n ever expressed to the State (much less reached an agreement with the T h e complaint was later amended on two occasions. The first amended c o mp l a i n t added a count seeking civil penalties and injunctive relief under the R e s o u r c e Conservation and Recovery Act, 42 U.S.C. § 6972. The second a me n d e d complaint, filed July 16, 2007, dropped a defendant. The changes from t h e original complaint are irrelevant to the issues on appeal.
1

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S t a t e ) that it should share in the State's recovery of costs or damages in its lawsuit. The Nation was, however, engaged early on with both the State and Tyson. In late 2005, after the filing of the initial complaint, representatives of the Nation me t with representatives of both Tyson and the State. The Nation discussed its i n t e r e s t s in the IRW, but asked Tyson "not to pursue a course of action that would p u t the validity of the Cherokee Nation's claims" to parts of the IRW before the c o u r t . Id. at 647. T h e litigation had sufficiently matured by November 15, 2007, that the d i s t r i c t court issued a scheduling order: Discovery was to be completed by M a r c h 2, 2009, and trial was to be held the following September (the specific date o f September 21, 2009, being set in a later order on April 24, 2009). Also, a day b e f o r e the scheduling order the State sought a preliminary injunction enjoining T y s o n from "(1) applying poultry waste to any land within the IRW and (2) a l l o w i n g the application of poultry waste generated at its respective poultry f e e d i n g operations and/or the respective poultry feeding operations under contract w i t h it to any land within the IRW." Aplee. Supp. App. at 130. The district court e v e n t u a l l y denied the request for a preliminary injunction on September 29, 2008, a n d we affirmed. See Att'y Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d 769 ( 1 0 t h Cir. 2009).

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B.

M o t i o n to Dismiss

A l t h o u g h Tyson's answer to the original complaint had raised the defense o f failure to join a required party, Tyson did not take any formal steps regarding t h a t defense until June 26, 2008, when it served the State with discovery requests s e e k i n g documents regarding agreements and communications between the State a n d the Nation with respect to claims to natural resources within the IRW. On A u g u s t 11, the State responded with several documents indicating that its claims t o IRW resources potentially conflicted with those of the Nation. Relying in part on the documents received, Tyson filed on October 31, 2 0 0 8 , a motion seeking to dismiss the case for failure to join the Nation. Pointing t o the Nation's historical claims of ownership over resources within the IRW and i t s concern about being subjected to multiple and inconsistent obligations, Tyson a s s e r t e d that the Nation was a required party to the lawsuit. See Fed. R. Civ. P. 1 9 ( a ) ( 1 ) . And because the Nation was a sovereign entity that could not be joined w i t h o u t its consent, Tyson contended that the damages claims had to be dismissed u n d e r Fed. R. Civ. P. 19(b) (setting standard for dismissal of claims when r e q u i r e d party cannot be joined). In the alternative, Tyson moved for judgment as a matter of law on the ground that the State lacked standing to raise certain claims b e c a u s e it had not demonstrated that it had an ownership or trusteeship interest o v e r the IRW's natural resources.

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O n the day that Tyson filed its Rule 19 motion, the Nation's Principal Chief i s s u e d a public statement regarding the motion. It said: The water rights of the Cherokee Nation came into existence long b e f o r e the State of Oklahoma or the United States. From the time the N a t i o n exchanged with the federal government all its land in the east w i t h the land in northeastern Oklahoma, water rights have remained i n t a c t . However, I have to point out that the Cherokee Nation has n o t filed this motion to dismiss and it would be a mistake to assume t h a t we support the unconditional dismissal of this lawsuit. The C h e r o k e e Nation, like the state of Oklahoma, has to protect the water q u a l i t y interests within our jurisdiction. . . . We will take time to a n a l y z e this filing and act accordingly. In the meantime, the C h e r o k e e Nation hopes to continue working with the state on water r i g h t s discussions, so that tribal and state regulatory structures can c o o p e r a t e in advancing our common interests. A p l t . App., Vol. 4 at 743. The State responded to the motion on January 8, 2009. The response d e v o t e d little attention to possible money claims by the Nation. It said: "[Tyson] h a [ s ] offered no evidence that an award of damages from [Tyson] to the State w o u l d as a practical matter impair or impede any [Nation] interest." Id., Vol. 3 at 4 1 5 . And after noting that the Nation "has not indicated that it intends to sue [ T y s o n ], " it added that in any event, "CERCLA precludes double recovery of n a t u r a l resource damages." Id. at 416. The State did not so much as hint that it w a s seeking any damages for the Nation's benefit. F o u r months later, on May 19, 2009, while Tyson's Rule 19 motion was p e n d i n g , the Nation and the State entered into an agreement (the Agreement) that a c k n o w l e d g e d the Nation's "substantial interests in lands, water and other natural
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r e s o u r c e s located within the [IRW]." Id. at 532. The Agreement, which was p u r p o r t e d l y effective on June 13, 2005 (the date the complaint was filed), was e x e c u t e d by the Attorneys General of the Nation and Oklahoma. It assigned to t h e State the Nation's right to prosecute any claims relating to those brought by t h e State in its lawsuit against Tyson. Although the Agreement asserted that "it is n o t necessary for the Court to resolve the precise nature of each sovereign's i n t e r e s t s in lands, water and other natural resources of the [IRW]," id., it also s t a t e d that should the court find it necessary to determine the nature of those i n t e r e s t s , the Agreement would be "null and void," id. at 534. On July 2, 2009, the district court held oral argument on Tyson's Rule 19 mo t i o n , and on July 22 it granted the motion in part and denied it in part. The c o u r t first concluded that the Agreement was invalid. It reasoned (1) that the A g r e e me n t did not meet Oklahoma's statutory standards for cooperative a g r e e me n t s with Indian Tribes; (2) that the Attorney General of the Nation was n o t authorized to enter into such agreements; (3) that Oklahoma law prohibited t h e assignment of state-law claims not arising out of contract (thereby negating t h e Nation's purported transfer of rights to prosecute the trespass and nuisance c l a i ms ) ; and (4) that the Agreement's purported retroactivity was prohibited by O k l a h o ma law and, in any event, could not cure any jurisdictional defects that e x i s t e d at the time the complaint was filed.

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T h e district court then ruled that the Nation was a required party under Fed. R . Civ. P. 19, and, after observing that joinder was not feasible, dismissed each of t h e State's claims for damages. It explained that the damages claims could not be d e c i d e d without the Nation's involvement: W i t h o u t a legally binding assignment of the Cherokee Nation's rights a n d interests in the IRW, a damage award to the State either abridges t h e right of the Cherokee Nation to pursue its own claim for money d a ma g e s or, to the extent the Cherokee Nation is not barred by issue o r claim preclusion, conversely exposes defendants to the risk of mu l t i p l e , inconsistent judgments. And . . . if the State loses its claim f o r damages, defendants face a real and substantial risk the Cherokee N a t i o n , unfettered by issue and claim preclusion, would pursue d a ma g e claims on its own. I d . at 564­65. The court also ruled that the State lacked standing "to prosecute mo n e t a r y damage claims for injury to the [Nation's] substantial interests in lands, w a t e r and other natural resources located in the IRW." Id. at 567­68. In light of i t s ruling, the court dismissed as moot several outstanding motions regarding the d a ma g e s claims. The State unsuccessfully moved for reconsideration. Also, T y s o n and the State, joined by the Nation, engaged in settlement discussions. But t h a t effort proved unsuccessful. C. M o t i o n to Intervene

O n September 2, 2009, nineteen days before trial was scheduled to begin, t h e Nation filed a motion to intervene as of right under Fed. R. Civ. P. 24(a). The N a t i o n ' s proposed intervenor complaint, asserting the Nation's ownership interest i n the IRW, alleged CERCLA claims for cost-recovery and damages and a
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f e d e r a l - n u i s a n c e - l a w claim for damages and injunctive relief. The next day, the S t a t e , assuming that intervention by the Nation would resuscitate its own damages c l a i ms , moved to continue the trial for 120 days "in order to remove any obstacles t o the granting of the Motion to Intervene by the Cherokee Nation," State's M o t i o n for Continuance of Trial at 1, Tyson Foods, Inc., No. 05-cv-329-GKF ( P J C ) (N.D. Okla. Sept. 3, 2009); and on September 10 it filed a response in s u p p o r t of the Nation's motion to intervene. T y s o n also filed a response on September 10. It contended that the N a t i o n ' s motion to intervene was untimely. And with respect to the State's r e q u e s t for a 120-day continuance, Tyson argued that the request "grossly u n d e r e s t i ma t e [ d ]" the need for additional time if the Nation were allowed to i n t e r v e n e . Aplt. App., Vol. 4 at 667. It asserted that "extensive discovery and b r i e f i n g will be required to adjudicate the numerous additional, complex issues of l a w and fact by virtue of the Cherokee Nation's separate claims and interests." Id. It also said that resetting the trial date would cause severe disruption: [T]he calendars of defense counsel, defense witnesses and perhaps t h e calendar of the Court are not so malleable that a several month l o n g trial can simply be penciled in a mere four months from now as t h e State suggests. Defense counsel, defense witnesses and this C o u r t have postponed and delayed other important business and cases i n order to accommodate Plaintiffs' demands for a September 21 trial d a t e with the expectation that such matters can be attended to once t h i s trial concludes in October or November of 2009. Id. (citation omitted).

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O n September 15, six days before the scheduled trial date, the district court h e l d a hearing on the Nation's motion. The Nation's Attorney General a c k n o w l e d g e d that the Nation had "tried very diligently not to become a party to t h i s lawsuit," had "never wished to have our ownership in the [IRW] an issue in t h i s case," and had asked Tyson "not to assert our interest in the watershed." Id., V o l . 5 at 869. But she argued that the motion was timely because the Nation had p r e v i o u s l y thought that it could rely on the State to protect its "interest in a d d r e s s i n g the pollution," id. at 879, and did not discover until the court's July 22 o r d e r that it could not. She also contended that the Nation would suffer prejudice i f it were not permitted to join because, among other reasons, it lacked the r e s o u r c e s to prosecute the case without the State's assistance. She conceded that t h e r e would be some delay were the Nation's motion granted, but argued that no mo r e than a two-month delay would be necessary. The State supported the Nation's position. It argued that permitting i n t e r v e n t i o n would not enlarge the scope of the original claims and would entail o n l y minimal additional discovery. It further contended that the Nation's motion w a s timely because the Nation had reasonably believed until the district court's J u l y 22 order that the State was adequately protecting its interests. Tyson countered that because the Nation had sat on its rights until S e p t e mb e r 2009, its motion was untimely. It also contended that intervention w o u l d cause great disruption to the case, because resuscitating previously
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d i s mi s s e d claims would require addressing new, complicated issues, such as the e x t e n t of the Nation's ownership over the IRW and whether any statute of l i mi t a t i o n s barred its claims. T h e district court denied the Nation's motion. It said: T h i s is not a particularly easy issue and there is no perfect resolution t o this issue. This case was filed over four years and three months a g o , and trial is scheduled to begin less than a week from today. As p r e v i o u s l y stated, the Nation admits . . . "there's a possibility for d e l a y " . . . in the event this Court were to permit intervention. The N a t i o n attaches to its motion a proposed intervenor's complaint with t h r e e causes of action. The filing of an intervenor's complaint, i n c l u d i n g a federal common law nuisance claim would trigger more t h a n a 120 day delay. It would require the reinsertion of three causes o f action that were previously dismissed, the consequent r e s u s c i t a t i o n of numerous motions pertaining to those causes of a c t i o n , both motions for summary judgment and motions in limine. Perhaps more significantly, it would trigger the necessity of a new r o u n d of discovery pertaining to at least the statute of limitations i s s u e s , a new round of motions for summary judgment and likely a n e w round of motions in limine, in addition to those 41 that have a l r e a d y been filed. Such an approach would result in delay and expense, which w o u l d severely prejudice the parties who have been actively p r o c e e d i n g toward trial these past four-plus years. [Tyson] ha[s] a d e q u a t e l y demonstrated that the Cherokee Nation knew of its i n t e r e s t in this case from the outset of the litigation but chose not to i n t e r v e n e for a number of reasons and the Court will not secondg u e s s those reasons. T h e Nation will not be prejudiced in the sense that its claims w i l l not be impaired by the denial of its motion to intervene. The C h e r o k e e Nation may bring its claims in a separate lawsuit if it w i s h e s . This Court--would have been pleased to grant the Nation's mo t i o n to intervene if it had been timely. Unfortunately it is not. For these reasons, as well as the other reasons set forth in the d e f e n d a n t s [ ' ] brief, the motion to intervene . . . is denied. I d . at 927­28.
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O n September 24, 2009, the State and Tyson proceeded to a bench trial on t h e State's equitable claims. Trial took 52 days and the parties are awaiting final j u d g me n t . II. DISCUSSION F e d . R. Civ. P. 24(a)(2) provides, in pertinent part, as follows: O n timely motion, the court must permit anyone to intervene who: .... c l a i ms an interest relating to the property or transaction that is the s u b j e c t of the action, and is so situated that disposing of the action ma y as a practical matter impair or impede the movant's ability to p r o t e c t its interests, unless existing parties adequately represent that interest. T h u s , a movant may intervene as a matter of right if "(1) the [motion] is timely, ( 2 ) the [movant] claims an interest relating to the property or transaction which is t h e subject of the action, (3) the [movant's] interest may be impaired or impeded, a n d (4) the [movant's] interest is not adequately represented by existing parties." Elliott Indus. Ltd. P'ship v. BP Am. Prod. Co., 407 F.3d 1091, 1103 (10th Cir. 2 0 0 5 ) . Timeliness is the sole matter of dispute in this appeal. A. S t a n d a r d of Review

W e review a district court's ruling on timeliness for an abuse of discretion. See Coal. of Ariz./N.M. Counties for Stable Econ. Growth v. Dep't of Interior, 1 0 0 F.3d 837, 840 (10th Cir. 1996). Under the abuse-of-discretion standard, "a t r i a l court's decision will not be disturbed unless the appellate court has a definite
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a n d firm conviction that the lower court made a clear error of judgment or e x c e e d e d the bounds of permissible choice in the circumstances." Phelps v. H a m i l t o n , 122 F.3d 1309, 1324 (10th Cir.1997). B. T h e Timeliness of the Nation's Motion

T h e timeliness of a motion to intervene is determined "in light of all of the c i r c u ms t a n c e s . " Sanguine, Ltd. v. U.S. Dep't of Interior, 736 F.2d 1416, 1418 ( 1 0 t h Cir. 1984). We have recognized three factors as particularly important: "[(1)] the length of time since the [movant] knew of [its] interests in the case; [ ( 2 ) ] prejudice to the existing parties; [and (3)] prejudice to the [movant]." Id. But these consideration are not exclusive and the trial court should also consider " t h e existence of any unusual circumstances." Id. The Nation contends that these f a c t o r s establish an abuse of discretion. We disagree. 1. L e n g t h of Time Since the Nation Knew of its Interest

" W h e n the applicant appears to have been aware of the litigation but has d e l a y e d unduly seeking to intervene, courts generally have been reluctant to allow i n t e r v e n t i o n . " 7C Charles A. Wright et al., Federal Practice & Procedure § 1916, a t 539­40 (3d ed. 2007). In this case it is undisputed that the Nation had been a w a r e of the litigation for more than four years before its eve-of-trial motion to i n t e r v e n e . Indeed, even before suit was filed in June 2005, the Nation's Principal C h i e f wrote to the Oklahoma Attorney General about "the proposed lawsuit." Aplt. App., Vol. 4 at 688.
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T h e Nation and the State argue, however, that the timeliness of the Nation's mo t i o n must be measured only from when it had reason to recognize that its i n t e r e s t s were not being adequately represented by a party to the litigation. In p a r t i c u l a r , they contend that the Nation reasonably believed that the State was a d e q u a t e l y representing its interests until shortly before the motion to intervene. According to them, (1) it was only on October 31, 2008, when Tyson filed its R u l e 19 motion to dismiss for absence of a required party, that the Nation became a w a r e of the possibility that its interests would not be adequately represented by t h e State, and (2) it was not until July 22, 2009, when the district court ruled on t h a t motion, that the Nation definitively knew that the State could not in fact r e p r e s e n t its interests. W e agree that a potential party could not be said to have unduly delayed in mo v i n g to intervene if its interests had been adequately represented until shortly b e f o r e the motion to intervene. After all, an earlier motion to intervene--when t h e movant's interests were adequately represented by a party--would have been d e n i e d . See San Juan County, Utah v. United States, 503 F.3d 1163, 1203 (10th C i r . 2007) (plurality opinion). Therefore, we join the other circuits that measure d e l a y from when the movant was on notice that its interests may not be protected b y a party already in the case. See Reich v. ABC/York-Estes Corp., 64 F.3d 316, 3 2 2 (7th Cir. 1995) ("[W]e do not expect a party to petition for intervention in i n s t a n c e s in which the potential intervenor has no reason to believe its interests
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a r e not being properly represented . . . ."); Sierra Club v. Espy, 18 F.3d 1202, 1 2 0 6 (5th Cir. 1994) ("A better gauge of promptness is the speed with which the w o u l d - b e intervenor acted when it became aware that its interests would no longer b e protected by the original parties."); Hill v. W. Elec. Co., 672 F.2d 381, 386 ( 4 t h Cir. 1982) ("[C]ritical issue with respect to timeliness is whether the p r o p o s e d intervenor moved to intervene `as soon as it became clear that the i n t e r e s t s of the unnamed class members would no longer be protected by the n a me d class representatives.'" (quoting United Airlines, Inc. v. McDonald, 432 U . S . 385, 394 (1977) (ellipsis omitted)); Legal Aid Soc'y of Alameda Co. v. D u n l o p , 618 F.2d 48, 50 (9th Cir. 1980) ("[T]he relevant circumstance here for d e t e r mi n i n g timeliness is when the intervenor became aware that its interest w o u l d no longer be protected adequately by the parties . . . ."); cf. Elliott, 407 F . 3 d at 1103 ("Prior to the district court's entry of final judgment it was r e a s o n a b l e for [the prospective intervenor] to rely on Appellees to argue the issue o f subject matter jurisdiction."). There may, of course, be different degrees of clarity of notice that a party c a n n o t or will not represent a potential movant's interest; and the district court w i l l need to consider that clarity (or lack of it) in weighing the factors for and a g a i n s t intervention. For example, the court could expect the motion to intervene t o be filed promptly when delay could significantly prejudice other parties, even t h o u g h the inadequacy of representation is not free from doubt.
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I t helps the Nation little, however, to measure its delay from when it was o n notice that the State might not adequately represent its interests. It had such n o t i c e long before its motion. True, in one respect the Nation had every reason to e x p e c t the State to protect its interests. In seeking injunctive relief against Tyson, t h e State was doing all that the Nation might wish to do in that regard. Moreover, i n seeking funds from Tyson under CERCLA to remedy the effects of prior p o l l u t i o n (say, money for decontaminating an area), the State may have been d o i n g just what the Nation would have wanted. But the Nation's interests that are r e l e v a n t to the question before us are the interests pursued in its proposed c o mp l a i n t in intervention; and, as we shall see, the Nation has made no showing t h a t it ever had reason to rely on the State to pursue many of those interests on its behalf. The Nation's proposed complaint stated three causes of action. All relied o n essentially the same allegations against Tyson as those in the State's c o mp l a i n t , except that they alleged the interests of the Nation, rather than the S t a t e , with respect to the alleged pollution. The first count was for CERCLA cost r e c o v e r y under 42 U.S.C. § 9607. It alleged that as a result of Tyson's improper r e l e a s e of hazardous substances into the IRW, the Nation "has incurred, and will c o n t i n u e to incur, necessary response costs . . . includ[ing] . . . costs of mo n i t o r i n g , assessing and evaluating water quality, wildlife and biota in the I R W . " Aplt. App., Vol. 4 at 627­28. "Accordingly," said the complaint, the
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" N a t i o n is entitled to recover from [Tyson] all of the [Nation's] past and present n e c e s s a r y response costs" and to a declaratory judgment that Tyson is liable "for a l l future necessary response costs incurred by the [Nation]." Id. at 628. The S t a t e , however, had not sought recovery of past, present, or future response costs o f the Nation. Rather, it sought "all of the State of Oklahoma's past and present n e c e s s a r y response costs," and sought a declaratory judgment that Tyson was l i a b l e for "all future necessary response costs incurred by the State of Oklahoma." Id., Vol. 2 at 324 (emphasis added). The Nation could never have reasonably t h o u g h t that the State was representing the Nation's interests in recovering its d a ma g e s . Even if the Nation believed that it would not need to recover any future r e s p o n s e costs because the State would be doing all the responding (although n o t h i n g in the record supports that belief), the prayer for recovery of response c o s t s already incurred by the Nation could not be answered by a State victory in i t s suit. The Nation's second count, for CERCLA resource damages under 4 2 U.S.C. § 9607, is similar. It alleges that Tyson's pollution has resulted in " i n j u r y to, destruction of, and loss of natural resources in the IRW, . . . for which t h e [Nation] is trustee," just as the State alleged its trustee status in its complaint. Id., Vol. 4 at 629. The count then alleges that the Nation "has incurred r e a s o n a b l e and necessary costs to assess and evaluate this injury, destruction and l o s s of the natural resources" and seeks damages, including "(a) the cost to
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r e s t o r e , replace, or acquire the equivalent of such natural resources; (b) the c o mp e n s a b l e value of lost services resulting from the injury to such natural r e s o u r c e s ; and (c) the reasonable cost of assessing injury to the natural resources a n d the resulting damages." Id. at 630. Again, however, the State's complaint d i d not seek such damages for the Nation, and the Nation could not have r e a s o n a b l y thought that the State was representing its interests in those damages. As with the first count, the Nation may have thought that it would not need to s e e k future damages because the State would "restore, replace, or acquire the e q u i v a l e n t " of the injured or lost resources; but the State's suit could not have r e c o v e r e d for the Nation the cost of assessing injury or the value to the Nation of l o s t services. A s for the Nation's third count, a claim of federal common-law nuisance, t h e injunctive relief sought is identical to what the State sought on its claims that w e n t to trial. But the compensatory and punitive damages sought by the Nation f o r past and future injury could not have been recovered for the Nation in the S t a t e ' s suit. The Nation has not argued any theory under which the State could h a v e adequately represented the Nation's interest in obtaining monetary relief on t h i s claim. We can sum up as follows regarding the three types of interests that the N a t i o n sought to pursue in its proposed complaint. First, insofar as the Nation h a d an interest in injunctive relief against Tyson, it could have reasonably
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a s s u me d from the outset of the suit that the State would adequately represent the N a t i o n ' s interests, and nothing that occurred before the Nation moved to i n t e r v e n e would suggest the contrary. The district court ruled that the State could p u r s u e its injunctive relief and has held a trial on that matter. The Nation had no n e e d to intervene in that trial; and apparently it never sought to modify its motion t o intervene to allow it to be a party at that trial. Second, insofar as the Nation had an interest in recovering past response a n d assessment costs under CERCLA and both compensatory damages (for past a n d future injury) and punitive damages under federal common law, the State's c o mp l a i n t never sought such recovery for the Nation, and nothing in the record s u g g e s t s that the Nation could have reasonably believed that those interests would b e adequately protected by the State in its lawsuit. T h i r d , insofar as the Nation had an interest in damages for its future r e s p o n s e and restoration costs under CERCLA, the State's complaint did not seek s u c h damages for the Nation. Perhaps the Nation could have believed that the S t a t e ' s suit would protect this interest of the Nation because success in the State's s u i t would eliminate any need for the Nation to incur such future costs; but n o t h i n g in the record directly supports such a belief. Accordingly, for much, perhaps most, of what the Nation sought in its p r o p o s e d complaint, nothing had happened in the four-plus years since the State f i l e d its complaint that would indicate that the State could no longer adequately
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r e p r e s e n t the Nation's interests. Either the Nation's interests were never r e p r e s e n t e d by the State (the interest in past CERCLA damages and in all c o mmo n - l a w - n u i s a n c e compensatory and punitive damages) or were still being a d e q u a t e l y represented by the State (the interest in injunctive relief). In p a r t i c u l a r , with respect to these interests the Nation could not point to some event s h o r t l y before it moved to intervene that could explain a sudden effort to i n t e r v e n e . On this basis alone, the district court could properly find an unjustified d e l a y by the Nation in seeking to intervene. M o r e o v e r , even if one assumes that the Nation reasonably believed when t h e State filed its suit that the Nation would be protected by the suit from i n c u r r i n g future costs to remedy the alleged pollution, the Nation can still be c h a r g e d with a delay of almost a year. The Nation was on notice that its reliance o n the State was questionable when Tyson filed its motion to dismiss in October 2 0 0 8 . Indeed, the Nation was certainly aware of the risk to its interests in early 2 0 0 9 when it began negotiations with the State to assign it those interests. The N a t i o n has not explained why it could not have moved to intervene at the same t i me that it was conducting those negotiations; such a motion would have p r o t e c t e d it in the event of deadlocked negotiations or, as happened, court r e j e c t i o n of the agreement. If the date for commencement of trial had still been f a r off, it may have made perfect sense to try negotiating before moving to i n t e r v e n e . But given the imminent date for a lengthy trial, the district court could
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d e c i d e that the Nation (and the State) were taking an unreasonable risk by putting a l l their eggs in the negotiated-agreement basket. A potential intervenor cannot i g n o r e the prejudice to others that could result from a last-minute intervention. L i k e w i s e , the Nation's attempts to facilitate settlement of the case in A u g u s t 2009 (a month before trial) came too late to justify delay in moving to i n t e r v e n e . After all, a party cannot excuse its unreadiness for trial on the ground t h a t it had been trying to settle the dispute. At some point well before trial a p a r t y must realize that it needs to plan for the possibility that negotiations will fail. T h a t said, however, we recognize that delay in itself does not make a r e q u e s t for intervention untimely. "The requirement of timeliness is not a tool of r e t r i b u t i o n to punish the tardy would-be-intervenor . . . ." Utah Ass'n of Counties v . Clinton, 255 F.3d 1246, 1250 (10th Cir. 2001) (internal quotation marks o mi t t e d ) . The other factors in the test for untimeliness must also be considered. See id. (timeliness requirement is a "guard against prejudicing the original parties b y the failure to apply sooner" (internal quotation marks omitted)); 7C Wright et a l . , supra § 1916, at 541­48 ("The most important consideration in deciding w h e t h e r a motion for intervention is untimely is whether the delay in moving for i n t e r v e n t i o n will prejudice the existing parties to the case."). We now turn to t h o s e factors. 2. P r e j u d i c e to Existing Parties
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T h e district court explained the nature of the prejudice that the existing p a r t i e s could suffer: This case was filed over four years and three month ago, and trial is s c h e d u l e to begin less than a week from today. As previously stated, t h e Nation admits . . . "there's a possibility for delay" . . . in the e v e n t this Court were to permit intervention. . . . The filing of an i n t e r v e n o r ' s complaint, including a federal common law nuisance c l a i m would trigger more than a 120 day delay. It would require the r e i n s e r t i o n of three causes of action that were previously dismissed, t h e consequent resuscitation of numerous motions pertaining to those c a u s e s of action, both motions for summary judgment and motions in l i mi n e . Perhaps more significantly, it would trigger the necessity of a new round of discovery pertaining to at least the statute of l i mi t a t i o n s issues, a new round of motions for summary judgment a n d likely a new round of motions in limine, in addition to those 41 t h a t have already been filed. Such an approach would result in delay and expense, which would s e v e r e l y prejudice the parties who have been actively proceeding toward t r i a l these past four-plus years. Aplt. App., Vol. 5 at 927­28. The Nation concedes that "the original parties . . . will suffer some d i s c o mf o r t if intervention is granted." Aplt. Br. at 20. And it has not disputed t h e gist of the district court's observations about what would have needed to be d o n e before trial had the court permitted intervention. In any event, those o b s e r v a t i o n s are amply supported by the record. For example, to prepare for the N a t i o n ' s proposed common-law nuisance claim, discovery would have been n e c e s s a r y regarding the Nation's ownership of resources in the IRW; and because t h e claims could be subject to a statute of limitations, that issue would also need t o be investigated. Further, Tyson indicated that it would defend against the
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N a t i o n ' s claim by arguing that the Nation was responsible for the presence of c e r t a i n pollutants in the IRW, thus raising another issue requiring discovery. The C E R C L A damages claims would also require additional discovery because the d i s t r i c t court had ruled (in granting Tyson's motion to dismiss the damages claims u n d e r Rule 19) that damages under CERCLA would need to be awarded to the S t a t e and the Nation in proportion to the actual management and control exercised b y each plaintiff over the injured resources, a matter not yet resolved, or even i n v e s t i g a t e d , in the case. The State and Nation argue that these matters would not be the c o n s e q u e n c e of any delay in the Nation's moving to intervene but simply the r e s u l t of allowing intervention. They point out, correctly, that the prejudice to o t h e r parties must be prejudice caused by the movant's delay, not by the mere fact o f intervention. See Clinton, 255 F.3d at 1251. But the point here is not that i n t e r v e n t i o n by the Nation would require more work by the existing parties. That i n itself did not concern the district court, which said that it would gladly have g r a n t e d a motion to intervene if it had been made earlier. Rather, the court's r e f e r e n c e to the need for this work explained why intervention would require a s u b s t a n t i a l delay before the case could go to trial. Cf. id. (intervention proper w h e n "no scheduling order ha[d] been issued, no trial date set, and no cut-off date f o r motions set"). And that last-minute delay would create prejudice--prejudice t h a t would not have resulted from an earlier intervention. Perhaps a short delay
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i n trial could be accommodated without much of a burden. But the delay of more t h a n 120 days anticipated by the district court would be something else. With the s t a r t date set for less than three weeks from the date of the Nation's motion to i n t e r v e n e , the parties had necessarily already arranged their schedules and the s c h e d u l e s of their witnesses. For example, the numerous attorneys (the record s h o w s that at the hearing on the motion to intervene, the State had 11 attorneys a n d the six defendants were represented by 18 attorneys from nine firms) would h a v e removed other obligations from their calendars for the next several months. And at the hearing, counsel for Tyson represented that "[d]ozens of witnesses h a v e cleared their schedule and some of them are here, ready to go. We have mo v e d to Tulsa [and] set up war rooms . . . ." Aplt. App., Vol. 5 at 917. The State and the Nation argue that Tyson has exaggerated the burden of d e l a y i n g the trial, pointing out that Tyson had requested a continuance not long b e f o r e the Nation moved to intervene. To be sure, Tyson had filed such a motion o n June 30; but it requested only an indefinite "brief postponement," Def.'s Mot. f o r Modification of May 14, 2009 Scheduling Order & Integrated Br. in Supp. at 3 , Tyson Foods, Inc., No. 05-cv-329-GKF (PJC) (N.D. Okla. June 30, 2009). And T y s o n ' s motion reads less like a request for continuance than a plea for rulings on n u me r o u s pending motions (for summary judgment and the exclusion of expert t e s t i mo n y ) that would impact trial preparation. The thrust of the motion was that

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T y s o n needed to be able to plan efficiently for trial, the same interest that it r a i s e d in opposing the delay that would result from the Nation's intervention. The district court could properly decide that the prejudice to Tyson would b e significant. See Culbreath v. Dukakis, 630 F.2d 15, 22 (1st Cir. 1980) ("The p u r p o s e of the basic requirement that the application to intervene be timely is to p r e v e n t last minute disruption of painstaking work by the parties and the court."). (The impact on the State could be similar, but the State clearly thought that the a d v a n t a g e s of being able to pursue its damages claims at the trial outweighed the c o s t s of delay.) 3. P r e j u d i c e to the Movant

T h e third factor--prejudice to the movant from denying intervention--also w e i g h e d in favor of denial. As the district court said: "The Nation will not be p r e j u d i c e d in the sense that its claims will not be impaired by the denial of its mo t i o n to intervene. The Cherokee Nation may bring its claims in a separate l a w s u i t if it wishes." Aplt. App., Vol. 5 at 928. The Nation's opening brief on appeal argues prejudice, but only tersely. The entire discussion of the specific prejudice in this case consists of the f o l l o w i n g paragraph: P r a c t i c a l l y , the Cherokee Nation may have no adequate a l t e r n a t i v e if the intervention is denied. If this cases continues the C h e r o k e e Nation, while it may not be legally bound as a party, may f i n d itself unable to prosecute its claims against [Tyson]. Since both t h e State and the Nation must bring their claims for damages
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c o l l e c t i v e l y against [Tyson], [1] the Nation's claims may well be p r a c t i c a l l y barred by res judicata if the State of Oklahoma is u n s u c c e s s f u l in its case for injunctive relief currently pending before t h e District Court and barred from re-alleging its claims based upon t h e same facts. [2] In addition, a loss by the State of Oklahoma at t h e District Court could well lead to appeals regarding multiple i s s u e s , including the issue of whether the Cherokee Nation has any r i g h t s to the waters of the Illinois River Watershed. By function of t h e District Court's denial of the Cherokee Nation's motion to i n t e r v e n e , the Nation would have no input into how this Court d e c i d e d those issues, except perhaps as an amicus. Aplt. Br. at 21. As we understand the Nation's first point--its practical-bar argument--it is c o n c e r n e d that if the State loses at the bench trial on equitable relief, the State c o u l d be barred by res judicata from pursuing damages claims in a later suit and t h e r e f o r e could not join the Nation in such a suit. In our view this concern was n o t adequately presented to the district court. Res judicata is not mentioned in t h e Nation's opening and reply briefs submitted to the district court in support of i t s motion to intervene. And the only references to the doctrine at the hearing on t h e motion are so brief that they would naturally be understood (and may well h a v e been intended) to refer to the possibility that the Nation itself would be b a r r e d by the doctrine. 2 See Tele-Commc'ns, Inc. v. Comm'r, 104 F.3d 1229, T h e first reference to res judicata by the Nation's Attorney General came i n the following comment:
2

W e could bring a new CERCLA lawsuit, Your Honor. The problem, w e believe that we would have to join the State of Oklahoma p u r s u a n t to your Honor's finding. They have immunity. We would
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1 2 3 2 (10th Cir. 1997) ("Generally, an appellate court will not consider an issue r a i s e d for the first time on appeal."). In any event, the possibility of prejudice is mo r e speculative than real. The Nation has consistently stated that it would rely o n the State's efforts to prove the claims against Tyson. Why, then, would the N a t i o n expect to be able to prevail in a damages trial if the State cannot obtain a f a v o r a b l e result in the trial of equitable issues? (We further note that the Nation n e v e r sought to intervene for just the trial on equitable issues.) T h e Nation's other prejudice argument fares no better. Its rights in the I R W cannot be affected by the State's lawsuit if it is not also a party. And to the

2

(...continued)

h a v e to do all of these things that have already been done in this l a w s u i t and also, Your Honor, depending on what happens here, we mi g h t very well face the real issues of res judicata or issue p r e c l u s i o n . Depending upon what happens to the State's case in this l a w s u i t it could very well affect any later lawsuit. A p l t . App., Vol. 5 at 877. Later, the Attorney General was even more abbreviated: Prejudice to the applicant we've talked about, it's not just money, i t ' s also the time, the issue preclusion, res judicata, bringing in a n o t h e r sovereign, starting all over, the existence of any unusual c i r c u ms t a n c e s . I d . at 905. The Tyson attorney obviously thought that these comments were s u g g e s t i n g that the Nation itself could be barred. His response was: Issue preclusion does not run against a nonparty, so that's just a c o mp l e t e red herring. Id. at 926.
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e x t e n t that it wishes to be heard if those rights somehow become an appellate i s s u e , its participation as an amicus would seem perfectly adequate. 4. Unusual Circumstances

F i n a l l y , we consider whether unusual circumstances argue for or against p e r mi t t i n g the Nation to intervene. Two such circumstances here might be that t h e delay caused by intervention would have adverse effects (1) on the public i n t e r e s t in a prompt injunction against pollution by Tyson and (2) on the efficient o p e r a t i o n of the district court (with negative impacts on litigants in other cases). With respect to the first potentially adverse impact, the State decided that a n y benefit from a prompt injunction would be outweighed by the desirability of j o i n t l y trying the injunction and damages claims. Although the district court w o u l d not necessarily be bound by the State's assessment of the public interest, t h e court had already denied a preliminary injunction and it did not rely on this p u b l i c interest in denying intervention. We therefore give no weight to this consideration. A s for the adverse impact on the district court and on litigants in other l a w s u i t s , the continuance that would have been necessary to allow the Nation's i n t e r v e n t i o n could have wreaked havoc on the court's calendar. Again, however, t h e court did not rely on this prejudice in denying intervention (although Tyson r a i s e d it both below and on appeal). We therefore have confined our analysis to

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t h e three factors on which courts customarily focus in determining timeliness of a mo t i o n to intervene. 5. Summary

I n light of the record before the district court regarding undue delay, p r e j u d i c e to the parties, and prejudice to the Nation, the court did not abuse its d i s c r e t i o n in denying intervention. III. CONCLUSION W e AFFIRM the denial of the Nation's motion to intervene.

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No. 09-5134, Oklahoma v. Tyson Foods, et al. T A C H A , Circuit Judge, dissenting:

I respectfully dissent. Rule 19(a) and Rule 24(a)(2) "are intended to mirror e a c h other." Oneida Indian Nation v. Madison Cnty., 605 F.3d 149, 162 (2d Cir. 2 0 1 0 ) ; see also Fed. R. Civ. P. 24, 1966 Amendment Note ("Intervention of right i s here seen to be a kind of counterpart to Rule 19(a) . . . ."). "If a party is not ` n e c e s s a r y ' under Rule 19(a) then it cannot satisfy the test for intervention as of r i g h t under Rule 24(a)(2)." Oneida Indian Nation, 605 F.3d at 162 (alterations o mi t t e d ) . Likewise, an applicant under Rule 24(a)(2) "is [generally] entitled to i n t e r v e n e in an action when his position is comparable to a [necessary party] u n d e r Rule 19(a)[]." Fed. R. Civ. P. 24, 1966 Amendment Note. Of course, even if a party is deemed "necessary" under Rule 19(a), it will n o t be permitted to intervene under Rule 24(a)(2) if its motion is untimely. Although not an exhaustive list of the circumstances that render a motion to i n t e r v e n e untimely, an applicant's motion is generally untimely if: (1) the a p p l i c a n t has delayed unduly in bringing its motion to intervene, see 7C Charles A . Wright et al., Federal Practice & Procedure § 1916 at 539­40 (3d ed. 2007) ( " W h e n the applicant appears to have been aware of the litigation but has delayed u n d u l y seeking to intervene, courts generally have been reluctant to allow i n t e r v e n t i o n . " ) ; or (2) the timing of the applicant's intervention will cause undue p r e j u d i c e to the existing parties, see Utah Ass'n of Cntys v. Clinton, 255 F.3d

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1 2 4 6 , 1250 (10th Cir. 2001) ("The requirement of timeliness is not a tool of r e t r i b u t i o n to punish the tardy would-be intervenor, but rather a guard against p r e j u d i c i n g the original parties by a failure to apply sooner."). I n this case, the district court held that the Nation is a "necessary party," h o w e v e r , just over a month later, it denied the Nation's motion to intervene as u n t i me l y . In my view, the Nation did not delay unduly in moving to intervene, n o r would the timing of its intervention cause prejudice to the existing parties w h i c h outweighs the prejudice that would be caused by its exclusion from this l a w s u i t . Accordingly, I respectfully dissent from the majority's opinion which a f f i r ms the denial of the Nation's motion to intervene. To begin, the majority applies the incorrect standard of review. Although w e normally review a district court's ruling on timeliness for an abuse of d i s c r e t i o n , see, e.g., Coal. of Ariz./N.M. Cntys. for Stable Econ. Growth v. Dep't o f Interior, 100 F.3d 837, 840 (10th Cir. 1996), when a district court's decision is p r e mi s e d on an improper legal standard, it is not entitled to deference. See K r e t z i n g e r v. First Bank of Waynoka, 103 F.3d 943, 946 (10th Cir. 1996) ( " [ W ]h e n a lower court's factual findings are premised on improper legal s t a n d a r d s or on proper ones improperly applied, they are not entitled to the p r o t e c t i o n of the clearly erroneous standard, but are subject to de novo review."). The majority adopts a timeliness test that measures the applicant's delay from the t i me it could no longer reasonably believe its interests were adequately -2-

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r e p r e s e n t e d by an existing party. The district court, however, did not apply this t e s t . Rather, it held that "[t]he defendants have adequately demonstrated that the C h e r o k e e Nation knew of its interest in this case from the outset of the litigation." Aplt. App. Vol. V at 927­28 (emphasis added). Because the district court did not, i n considering the timeliness of the Nation's motion to intervene, take into a c c o u n t whether the Nation could have reasonably believed its interests were a d e q u a t e l y represented by an existing party, it did not apply the correct test for t i me l i n e s s . Therefore, its decision should be reviewed de novo rather than for an a b u s e of discretion. N e x t , while I agree with the majority's newly adopted test for timeliness, I c a n n o t concur in its application of that test. As the majority correctly holds, w h e n assessing the timeliness of a motion to intervene under Rule 24(a)(2), the a p p l i c a n t ' s delay in bringing the motion is measured from the time the applicant c o u l d no longer reasonably believe its interests were adequately represented by an e x i s t i n g party. 1 See Reich v. ABC/York-Estes Corp., 64 F.3d 316, 322 (7th Cir. 1 9 9 5 ) ("[Applicants] reasonably believed their employer was representing their

A l t h o u g h the majority confusingly states that "we join the other circuits t h a t measure delay from when the movant was on notice that its interests may not b e protected by a party already in the case," Maj. at 18 (emphasis added), the ma j o r i t y ' s application of this standard correctly measures delay from when the N a t i o n could no longer reasonably believe its interests were adequately r e p r e s e n t e d . See Maj. at 21 ("The Nation could never have reasonably thought t h a t the state was representing the Nation's interests in recovering its damages.").
1

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i n t e r e s t s . " ) (emphasis added); Sierra Club v. Espy, 18 F.3d 1202, 1206 (5th Cir. 1 9 9 4 ) ("[T]he movants legitimately believed that the Forest Service would defend i t s timber sales and planning.") (emphasis added) (quotations omitted); Hill v. W. E l e c . Co., 672 F.2d 381, 386 (4th Cir. 1982) ("[T]he critical issue with respect to t i me l i n e s s is whether the proposed intervenor moved to intervene as soon as it b e c a m e clear that the interests of the unnamed class members would no longer be p r o t e c t e d by the named class representatives.") (emphasis added). With respect t o the CERCLA damages claims, the majority concludes that the Nation could n e v e r have reasonably believed that its interests were adequately represented by t h e State because "[t]he State . . . had not sought recovery of past, present, or f u t u r e response costs of the Nation." Maj. at 20­21. In other words, the ma j o r i t y holds that an applicant under Rule 24(a)(2) who is seeking damages c a n n o t reasonably believe that its interests are adequately represented by an e x i s t i n g party unless an existing party explicitly seeks damages on behalf of the applicant. The rule is simply not construed so narrowly. Indeed, "[t]he representation w h o s e adequacy comes into question under [Rule 24(a)(2)] is not confined to f o r ma l representation like that provided by a trustee for his beneficiary or a r e p r e s e n t a t i v e party in a class action for a member of the class." Fed. R. Civ. P. 2 4 , 1966 Amendment Note. Rather, we have gone so far as to presume adequate r e p r e s e n t a t i o n "when an applicant for intervention and an existing party have the -4-

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s a me ultimate objective in the litigation." Clinton, 255 F.3d at 1255. There can b e little doubt that the ultimate objectives of the State and the Nation were c o n g r u e n t with respect to the CERCLA claims--they both sought to recover mo n e t a r y damages from Tyson in order to compensate for and repair the damage i t allegedly caused to the IRW. The majority also holds that even if the Nation could have reasonabl