Amador County, California v. Department of the Interior, et al

Filing

OPINION filed [1524899] (Pages: 10) for the Court by Judge Sentelle, CONCURRING OPINION (Pages: 1) by Judge Randolph [13-5245]

USCA Case #13-5245

Document #1524899

Filed: 12/02/2014

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 9, 2014

Decided December 2, 2014
No. 13-5245

AMADOR COUNTY, CALIFORNIA,
APPELLEE
BUENA VISTA RANCHERIA OF THE ME-WUK INDIANS,
APPELLANT
v.
UNITED STATES DEPARTMENT OF THE INTERIOR, ET AL.,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 1:05-cv-00658)

Padraic I. McCoy argued the cause for appellant. With him
on the briefs was Carrell C. Doyle. Mark C. Tilden entered an
appearance.
Dennis J. Whittlesey argued the cause and filed the brief for
appellee.
Before: KAVANAUGH, Circuit Judge, and SENTELLE and
RANDOLPH, Senior Circuit Judges.

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Opinion for the Court filed by Senior Circuit Judge
SENTELLE.
Concurring opinion filed by Senior Circuit Judge
RANDOLPH.
SENTELLE, Senior Circuit Judge: In 2005, Amador
County, California brought suit against the Department of
Interior challenging the Secretary’s approval of a gaming
compact between the Buena Vista Rancheria of Me-Wuk
Indians (the “Tribe”) and the State of California. After nearly
six-and-a-half years of litigation, the Tribe sought to intervene
for the limited purpose of moving to dismiss the amended
complaint under Federal Rule of Civil Procedure 19. The
district court denied the motion as untimely, and this appeal
followed. Because we conclude that the district court did not
abuse its discretion, we affirm.
BACKGROUND
The Buena Vista Rancheria of Me-Wuk Indians is a
federally recognized Indian tribe that occupies a 67-acre parcel
of land located entirely within Amador County, California. See
Indian Entities Recognized and Eligible to Receive Services
from the United States Bureau of Indian Affairs, 79 Fed. Reg.
4,748, 4,749 (Jan. 29, 2014). In 1999, the Tribe negotiated a
gaming compact with the State of California under the Indian
Gaming Regulatory Act (“IGRA”), and submitted the compact
to the Secretary of the Interior for approval. Under the IGRA,
once the Tribe submits a gaming compact to the Secretary, the
Secretary can either approve the compact; disapprove the
compact, if it violates certain federal laws; or do nothing. If the
Secretary does nothing, the compact is deemed approved after
forty-five days. 25 U.S.C. § 2710(d)(8). In 2000, the Secretary
approved the compact. Notice of Approved Tribal-State

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Compacts, 65 Fed. Reg. 31,189, 31,189 (May 16, 2000). In
2004, the Tribe submitted an amended gaming compact to the
Secretary. This time, the Secretary took no action on the
amended compact for forty-five days, at which point the
compact was deemed approved by operation of law. See 25
U.S.C. § 2710(d)(8)(C).
In April 2005, Amador County challenged the
Secretary’s “no-action” approval of the amended compact,
arguing that the Tribe’s land fails to qualify as “Indian
lands”—a statutory requirement for gaming under the IGRA.
See id. at § 2710(d)(1). On July 22, 2005, Interior filed a motion
to dismiss the case, arguing that the County’s claims were not
subject to judicial review under the Administrative Procedure
Act (“APA”), 5 U.S.C. § 701(a)(2). Shortly thereafter, the Tribe
sought leave to participate in the case as amicus curiae. The
Tribe argued that the suit had to be dismissed under Rule 19 of
the Federal Rules of Civil Procedure because the Tribe was an
indispensable party to the litigation, and the Tribe is protected
by sovereign immunity so that the litigation could not proceed.
The Tribe also claimed that Interior did not adequately represent
the Tribe’s interests. The district court denied the Tribe’s
motion without explanation.
In 2008, while Interior’s motion to dismiss was still
pending, Amador County filed an amended complaint, and
Interior again moved to dismiss. The district court granted
Interior’s motion, finding that the Secretary’s “no action”
approval was “unreviewable,” as the decision to approve a
gaming compact is committed to agency discretion. Amador
County, Cal. v. Kempthorne, 592 F. Supp. 2d 101, 106–07
(D.D.C. 2009). Amador County appealed to this court. We
reversed. See Amador County, Cal. v. Salazar, 640 F.3d 373
(D.C. Cir. 2011).

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Upon review, we concluded that judicial review was not
precluded under the APA, as the decision to approve a compact
is not committed to agency discretion, but guided by principles
established in the IGRA. Amador County, 640 F.3d at 380–81.
We then “turn[ed] to the merits” of the suit, i.e., whether the
Tribe’s land qualifies as “Indian land” under the IGRA. Id. at
383. However, because the answer to this question turned on
extrinsic evidence not in the record, we remanded to the district
court to “assess the merits in the first instance.” Id. at 384.
Following this court’s remand, the district court ordered
the parties to file a Joint Status Report by November 7, 2011.
Three days before the parties filed the Joint Status Report, the
Tribe filed its motion to intervene. In June 2013, the district
court denied as untimely the Tribe’s motion to intervene, noting
that the parties’ Joint Status Report stated that the case is “ready
for oral argument and decision on the merits.” The Tribe now
appeals the district court’s denial of its motion for intervention.
ANALYSIS
Intervention of right as sought by appellant is governed
by Federal Rule of Civil Procedure 24. That rule provides:
(a) Intervention of Right. On timely motion, the court
must permit anyone to intervene who:
(1) is given an unconditional right to intervene by a
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 disposing of the action may as a
practical matter impair or impede the movant’s
ability to protect its interest, unless existing parties
adequately represent that interest.

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Under that rule, a district court must grant a motion to intervene
if the motion is timely, and the prospective intervenor claims a
legally protected interest in the action, and the action threatens
to impair that interest, unless that interest is adequately
represented by existing parties. Karsner v. Lothian, 532 F.3d
876, 885 (D.C. Cir. 2008). At the threshold, however, the
motion to intervene must be timely. U.S. v. British Am. Tobacco
Australia Servs., Ltd., 437 F.3d 1235, 1238 (D.C. Cir. 2006). If
the motion is untimely, the explicit language of the rule dictates
that “intervention must be denied.” NAACP v. New York, 413
U.S. 345, 365 (1973); U.S. v. Am. Tel. & Tel. Co., 642 F.2d
1285, 1294 (D.C. Cir. 1980).
Timeliness “is to be judged in consideration of all the
circumstances, especially weighing the factors of time elapsed
since the inception of the suit, the purpose for which
intervention is sought, the need for intervention as a means of
preserving the applicant’s rights, and the probability of prejudice
to those already parties in the case.” British Am. Tobacco, 437
F.3d at 1238 (internal quotation marks and citation omitted).
We review the district court’s denial of intervention for
untimeliness under the abuse of discretion standard. Id. A
district court abuses its discretion when it applies the wrong
legal standard or relies on clearly erroneous findings of fact. See
In re Vitamins Antitrust Class Actions, 327 F.3d 1207, 1209
(D.C. Cir. 2003).
In this case, after setting forth the timeliness test, the
district court found that the Tribe’s motion for intervention was
untimely. The district court found that the Tribe, from the outset
of this litigation, both knew that the suit could adversely affect
its rights, and questioned the adequacy of the United States’
representation. Mem. Op. & Order at 6–9, No. 05-cv-658
(D.D.C. June 4, 2013). The district court reasoned that
regardless of whether it measured the elapsed time from the time
when the prospective intervenor “‘knew or should have known
that any of its rights would be directly affected by the

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litigation,’” Roeder v. Islamic Republic of Iran, 333 F.3d 228,
233 (D.C. Cir. 2003) (quoting Nat’l Wildlife Fed’n v. Burford,
878 F.2d 422, 433–34 (D.C. Cir. 1989)), or when the “‘potential
inadequacy of representation came into existence,’” Smoke v.
Norton, 252 F.3d 468, 471 (D.C. Cir. 2001) (quoting Dimond v.
District of Columbia, 792 F.2d 179, 193 (D.C. Cir. 1986)),
timeliness weighs against the Tribe. Mem. Op. & Order 6–9.
The district court also considered the Tribe’s purpose for
intervention, namely to file a Rule 19 motion, and noted that the
Tribe’s need to intervene to maintain its sovereign immunity
was a “significant factor” weighing in favor of allowing
intervention. Id. at 8 n.6. Lastly, the district court found that
granting the Tribe’s motion will “further delay resolution of the
merits to the detriment of the existing parties,” since the case
was otherwise ready for a decision on the merits. Id. at 8.
Weighing all these factors, the district court found that the
Tribe’s motion was untimely. Having considered “all the
circumstances,” we conclude that the district court did not abuse
its discretion.
Nevertheless, the Tribe offers multiple arguments for
reversing the judgment. First, the Tribe asserts that the district
court “undervalue[d]” the Tribe’s purpose for intervention, that
is, to seek dismissal of the action on the basis of the Tribe’s
sovereign immunity. Appellant’s Br. 31–37. The Tribe, relying
on Acree v. Republic of Iraq, 370 F.3d 41, 50–51 (D.C. Cir.
2004), abrogated on other grounds by Republic of Iraq v. Beaty,
556 U.S. 848, 859–60 (2009), argues that because sovereign
immunity is jurisdictional, or at least quasi-jurisdictional, the
district court had a “heightened duty” to “weigh[] heavily” the
Tribe’s purpose for intervention. Appellant’s Br. 31–33.
The Tribe’s argument fails. We have never held that a
district court must give extra weight or special consideration to
a sovereign’s purpose for intervention. We have held that a
decision maker abuses its discretion if it fails to consider a

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relevant factor. See Peyton v. DiMario, 287 F.3d 1121, 1126
(D.C. Cir. 2002). Such is the holding of Acree, where this court
reversed a district court’s finding of untimeliness because it
“failed to weigh . . . the purposes for which the Government
sought to intervene.” Acree, 370 F.3d at 50. In this case, the
district court considered all the relevant factors, including the
Tribe’s purpose for intervention, and we will not disturb its
judgment.
Next, the Tribe argues that the district court abused its
discretion by using the wrong date in computing the elapsed
time. Appellant’s Br. 22. As the Tribe correctly notes, and as
the district court acknowledged, courts measure elapsed time
from when the “potential inadequacy of representation [comes]
into existence.” See Smoke, 252 F.3d at 471 (internal quotation
marks and citation omitted). The Tribe contends that a conflict
of interest did not arise until 2011, when the government, in a
separate but related proceeding, acknowledged that a Rule 19
defense was available but refused to assert it because of the
United States’ interest in seeking a resolution to this case on the
merits. Appellant’s Br. 27–28. Accordingly, the Tribe argues
that the district court should have used 2011, instead of 2005,
when weighing the elapsed time factor. We disagree.
Nothing changed in 2011 that warrants using that date in
computing the elapsed time. In 2005, the Tribe, in the amicus
curiae brief it proffered to the district court, argued that it was
an indispensable party to the litigation, that the suit should be
dismissed under Rule 19, and the government’s representation
of the Tribe’s interests may be inadequate. Thus, at a minimum,
the Tribe and the government knew as early as 2005 that a Rule
19 defense was available. Yet the government never asserted
this defense, even though it had the opportunity to do so in its
2008 motion to dismiss. That record belies the notion that the
Tribe could have expected inadequate representation from the

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government after, but not before, 2011. Indeed, the Tribe all but
admits as much by stating it had “earlier concerns about a
potential conflict of interest in the United States’
representation.” Appellant’s Br. 22.
The Tribe seeks to avoid this conclusion by arguing that it
was not until 2011 that its suspicion of inadequate representation
became a reality. Appellant’s Br. 28. Yet the Tribe argued in
2005 that “[t]he presence of the United States in this case does
not fully protect the Tribe’s interests.” Proposed Amicus Curiae
Br. at 13, No. 05-cv-658 (D.D.C. Aug. 23, 2005). The record
demonstrates that the Tribe knew in 2005 as well that the United
States might not adequately represent the Tribe’s interest.
Therefore, the district court did not abuse its discretion in using
2005 as the relevant date in its elapsed time analysis.
Lastly, the Tribe argues that even if the district court
used the correct date in the elapsed time analysis, the district
court erred because it treated the elapsed time analysis as
determinative. According to the Tribe, the district court
conflated the elapsed time with the prejudice analysis by
focusing exclusively on the delay the motion for intervention
will cause, instead of further analyzing how the delay will
prejudice the parties.
As we recently stated, the length of time passed “‘is not in
itself the determinative test.’” Roane v. Leonhart, 741 F.3d 147,
151 (D.C. Cir. 2014) (quoting Hodgson v. United Mine Workers
of Am., 473 F.2d 118, 129 (D.C. Cir. 1972)). This is because
“we do not require timeliness for its own sake.” Id.; see also 7C
Charles Alan Wright et al., Federal Practice and Procedure
§ 1916, at 532 (3d ed. 2007) (“The timeliness requirement is not
intended as a punishment for the dilatory . . . .”). Rather, “the
requirement of timeliness is aimed primarily at preventing
potential intervenors from unduly disrupting litigation, to the

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unfair detriment of the existing parties.” Roane, 741 F.3d at
151. Accordingly, in assessing timeliness, a district court must
weigh whether the intervention will “‘unfairly disadvantage[]
the original parties.’” Id. (quoting NRDC v. Costle, 561 F.2d
904, 908 (D.C. Cir. 1977)) (emphasis added).
In Roane, the district court declined to give any weight to
the prejudice factor. The district court in this case found that the
case was ready for a decision on the merits, and that the Tribe’s
intervention would delay resolution of the merits. We have
previously concluded that the delay caused by a potential
intervenor was sufficient to constitute prejudice where a
decision on the merits was pending. See British Am. Tobacco,
437 F.3d at 1238–39 (upholding finding of prejudice where the
intervention would further delay a “massive trial”); see also
NAACP, 413 U.S. at 367–69 (affirming denial of intervention
for untimeliness where intervention would delay the consent
judgment from taking effect); Stewart v. Rubin, 948 F. Supp.
1077, 1104 (D.D.C. 1996) (finding prejudice where intervention
would delay implementation of the settlement), aff’d 1997 WL
369455 (D.C. Cir. 1997).
In this case, the County filed the complaint over nine years
ago. In November 2011, the County and Interior agreed that the
case was “ready for oral argument and decision on the merits.”
Joint Status Report at 2, No. 05-cv-658 (D.D.C. Nov. 7, 2011).
The Tribe’s motion for intervention and the subsequent appeal
have delayed a decision on the merits for three years. If the
Tribe’s motion were granted, a resolution of this case would be
further delayed as the district court at the very least would need
to accept briefing on the Tribe’s Rule 19 motion, hear argument,
and rule on the motion. On such facts, we cannot say that the
district court abused its discretion in finding that the Tribe’s
intervention would cause prejudicial delay.

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Because we conclude that the district court did not abuse
its discretion on the threshold question of timeliness, we need
not reach the Tribe’s argument that the United States does not
adequately represent its interest. See NAACP, 413 U.S. at 369.
CONCLUSION
The district court set forth the proper test, analyzed the
relevant factors, and concluded that the Tribe’s motion to
intervene did not satisfy Rule 24(a)’s timeliness requirement.
On this record, we conclude that the district court did not abuse
its discretion. The judgment below is therefore
Affirmed.

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RANDOLPH, Senior Circuit Judge, concurring: I agree that
the Tribe’s motion to intervene pursuant to Rule 24 of the
Federal Rules of Civil Procedure was untimely. I write
separately to mention another basis for denying the motion.
Under Rule 24(a)(2), the motion to intervene must not only
be timely, but also the movant must claim
an interest relating to the property or transaction that is
the subject of the action, and [be] so situated that
disposing of the action may as a practical matter impair
or impede the movant’s ability to protect its interest,
unless existing parties adequately represent that
interest.
Fed. R. Civ. P. 24(a)(2).
The Tribe wanted to intervene in order to assert that it was
an indispensable party under Rule 19(a). The idea being that the
Tribe could then invoke its sovereign immunity and have the
court dismiss Amador County’s action against the Department
of the Interior. In terms of Rule 24(a)(2), the Tribe claimed that
the United States did not “adequately represent” the Tribe’s
“interest” – which the Tribe defined as its sovereign immunity.
Appellant’s Brief at 46.
The strategy was clever but it would not have worked. The
Tribe’s interest in its sovereign immunity was not – in the words
of Rule 24(a)(2) – “an interest relating to the property or
transaction that is the subject of the action.” The very point of
the Tribe’s motion was to inject sovereign immunity into the
case. The Tribe therefore would not have qualified for
intervention as of right even if it had timely filed its motion.

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