Valley Center-Pauma Unified School District v. Interior Board of Indian Appeals of The United States Department of Interior

Filing 13

ORDER denying 5 Motion to Intervene. Having considered the briefing in its entirety, the Court concludes that the San Pasqual Band of Diegueno Mission Indians has failed to establish a claim that shares a common question of law or fact permitting it to intervene, therefore the Court Denies the motion. Signed by Judge Anthony J. Battaglia on 3/27/2012. (All non-registered users served via U.S. Mail Service)(leh)

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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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Petitioner,
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v.
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INTERIOR BOARD OF INDIAN APPEALS )
OF THE UNITED STATES DEPARTMENT )
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OF THE INTERIOR,
VALLEY CENTER PAUMA UNIFIED
SCHOOL DISTRICT,

Civil No.11cv1260 AJB (BGS)

ORDER DENYING MOTION FOR
INTERVENTION
[Doc. No. 5]

Respondent.

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On August 29, 2011, the San Pasqual Band of Diegueno Mission Indians (the “Tribe”) filed a
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motion to intervene by permission as a party respondent, pursuant to Rule 24(b) of the Federal Rules of
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Civil Procedure. (Doc. No. 5.) Petitioner, Valley Center-Pauma Unified School District (the “Dis21
trict”), filed an opposition to the motion on September 13, 2011. (Doc. No. 9.) The Tribe filed a reply
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on September 19, 2011. (Doc. No. 10.) Having considered the briefing in its entirety, the Court
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concludes that the Tribe has failed to establish a claim that shares a common question of law or fact
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permitting it to intervene. For the reasons set forth below, the Court DENIES the motion.
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Background
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The Tribe is a federally recognized Indian Tribe, whose reservation was established by
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Executive Order on January 31, 1870. (Doc. No. 5 at 3.) The Reservation consists of approximately
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1,380 acres situated on three separate parcels of land, primarily steep and rolling hills. Id. The Tribe
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acquired a 9.08-acre parcel (“Site”) in San Diego County close to its current tribal government offices

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and other tribal land holdings to pursue economic development. Id. The Tribe proposed to operate a

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gas station and retail store on the site. Id. A fee-to-trust application was submitted to the Department

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of the Interior in September 2009. (Doc. No. 5 at 9.) The Tribe followed the required procedures to

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have the land taken into trust under 25 C.F.R. Part 151. (Doc. No. 5 at 7.) On January 4, 2011, the

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Pacific Regional Director of the Bureau of Indian Affairs approved the Tribe’s application to have the 9-

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acre parcel taken into trust by the United States for the benefit of the Tribe. Id. A Notice of Decision

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(“Notice”) to take the land into trust was issued and circulated to local agencies within San Diego

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County and throughout the State of California, including the California State Clearinghouse. (Doc. No.

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5 at 7: 15-18.)
The Notice contained an explanation of an interested party’s right to appeal within 30 days of the

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decision, along with instructions to submit the appeal to the Interior Board of Indian Appeals (“IBIA”).

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(Doc. No. 5 at 9.) Pursuant to the Notice, the deadline for appeal was February 2, 2011 with a time

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allowed for mailing. (Doc. No. 5 at 9: 24.)

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District officials, acting in awareness of the Notice, met with the Tribe to discuss its concerns

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and to alert the Tribe of its intention to file an appeal. Id. The District publicly announced its intention

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to appeal the decision in the local newspaper, referencing the February 2, 2011 deadline. (Doc. No. 5 at

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10: 23-26.)

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The District submitted its appeal to the Pacific Regional Director of Indian Affairs in Sacra-

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mento, California. (Doc. No. 5 at 11: 6-7.) The legal issues in the appeal included (1) whether the

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District was properly given notice of the Environmental Assessments, (2) whether its objections were

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adequately considered, (3) whether the proposed project violated California law barring placement of

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fuel storage adjacent to schools, and (4) whether the Finding of No Significant Impact illegally proposed

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an alteration of the District’s express real property rights. (Doc. No. 9 at 2: 1-10.) The IBIA received

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Petitioner’s appeal on February 24, 2011. (Doc. No. 5 at 11: 4.) An Order to Show Cause requesting

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Petitioner demonstrate why its appeal should be considered timely was issued on March 9, 2011. (Doc.

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No. 5 at 11: 9.) The IBIA subsequently dismissed the appeal for lack of jurisdiction because the District

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had constructive notice of the deadline to submit the appeal. (Doc. No. 5 at 11: 10-14.) Petitioner filed
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an appeal challenging the IBIA dismissal on June 8, 2011. (Doc. No. 5 at 11: 15.) The Tribe moves to

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permissively intervene on behalf of the Respondent in defending the IBIA’s dismissal. (Doc. No. 5.)

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Legal Standard

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Federal Rule of Civil Procedure 24(b)(1) provides that, “on timely motion, the court may permit

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anyone to intervene who (A) is given a conditional right to intervene by a federal statute; or (B) has a

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claim or defense that shares with the main action a common question of law or fact.” A party seeking

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permissive intervention must prove that it meets three threshold requirements: (1) it shares a common

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question of law or fact with the main action; (2) its motion is timely; and (3) the court has an independ-

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ent basis for jurisdiction over the applicant's claims. Donnelly v. Glickman, 159 F.3d 405, 412 (9th Cir.

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1996) (quoting Northwest Forest Resource Council v. Glickman, 82 F.3d 825, 839 (9th Cir. 1996)).

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Even if an applicant satisfies those threshold requirements, the court has discretion to deny

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permissive intervention. See Orange v. Air Cal., 799 F.2d 535, 539 (9th Cir.1986) (“Permissive

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intervention is committed to the broad discretion of the district court.”); Spangler v. Pasadena City

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Board of Educ., 552 F.2d 1326, 1329 (9th Cir.1977) (identifying nonexclusive discretionary factors that

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the district court may consider when deciding whether to grant permissive intervention). Further,

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permission to intervene “may be denied if the intervenor raises collateral or extrinsic issues, even

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though the petition presents a common question of law or fact.” City of Rockford v. Secretary of

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Housing and Urban Development, 69 F.R.D. 363 (N.D. Ill., 1975).

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In exercising its discretion, the district court must consider whether intervention will unduly

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delay the main action or will unfairly prejudice the existing parties’ rights. See Fed.R.Civ.P. 24(b)(3) (so

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providing); Venegas v. Skaggs, 867 F.2d 527, 530 (9th Cir.1989) (citations omitted).

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Discussion

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The Court recognizes the Tribe’s interests in defending the IBIA’s decision to dismiss the

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District’s appeal for lack of jurisdiction. While the outcome of that decision relates to the Tribe’s legal

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rights, permissive intervention requires that the Tribe’s claims or defenses share a common question of

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law or fact with the action. Donnelly, 159 F.3d at 412. The question of law in this action is whether the

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IBIA properly dismissed the District’s appeal. The Tribe argues that it is an essential party because of

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its ownership interest in the land, the Tribe’s status as the party most versed in the history of the Valley
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View area, and the Tribe’s interest in securing a timely resolution of this matter. However, this

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summary of the Tribe’s “stake” in defending the dismissal does not share a common question of law or

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fact in relation to whether the IBIA exceeded its statutory authority. Because there is no common

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question of law or fact on which the Court may permit the Tribe to intervene, the Tribe has no standing

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to assert the rights of the IBIA. There are no common questions of law and fact between any claim or

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defense of the Tribe, and those in this action. The Tribe’s having a “stake” in the outcome of this

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petition does not constitute permissible grounds for intervention.

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Further, the Tribe concedes that the United States1 will vigorously defend against Petitioner’s

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claims. The United States may both adopt and assert the Tribe’s arguments before the IBIA proceed-

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ings. See South Dakota ex rel. Barnett v. Dept. of Interior, 317 F.3d 783, 787 (8th Cir. 2003) (where the

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court considered whether the existing parties could adequately protect the putative intervenor’s interest,

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such that intervention would be rendered necessary).

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The Court recognizes the Supreme Court’s preference for encouraging Indian tribes to

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“participat[e] in litigation critical to their welfare.” Arizona v. California, U.S. 605, 615 (1983). Indian

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tribes have routinely been allowed to intervene in cases where a Petitioner challenges the decision to

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accept a parcel of land into trust. Butte County v. Hogen, 2008 WL 2410407 (D.D.C. June 16, 2008).

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However, the Court finds that the present case is distinguishable from the cases relied upon by the Tribe.

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See, e.g., Butte County v. Hogen, 2008 WL 2410407 (D.D.C. June 16, 2008) (an action ensuring the

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adjudication of water rights); Florida Dep’t of Bus. Regulation v. U.S. Dep’t of Interior, 768 F.2d 1248,

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1250 (11th Cir. 1985) (granting leave to intervene in an action to preserve Indian artifacts and the

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dignity of a burial site); City of Sault Ste. Marie, Michigan v. Andrus, 532 F.Sup. 157, 159-160 (D.D.C.

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1980) (addressing the issue of whether the tribe had been Federally recognized). Here, by contrast, the

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Tribe proposes to utilize the land for a gas station and retail site next to a school, which does not rise to

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the requisite level of concern to warrant intervention.

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Presumably the IBIA on behalf of the United States.
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Conclusion

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For the reasons set forth above, the Tribe’s motion to intervene is DENIED.

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IT IS SO ORDERED.

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DATED: March 27, 2012

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Hon. Anthony J. Battaglia
U.S. District Judge

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