Wyandotte Nation v. Salazar
Filing
41
MEMORANDUM AND ORDER granting 7 Motion to Intervene as a Defendant by State of Kansas. Signed by Magistrate Judge David J. Waxse on 4/11/2012. (kao)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
WYANDOTTE NATION,
a federally-recognized
Indian tribe,
Plaintiff,
v.
KENNETH L. SALAZAR,
in his official capacity as Secretary
of the United States Department of
the Interior,
Defendant,
and
STATE OF KANSAS, ex rel.
Derek Schmidt, Attorney General
Intervening Defendant.
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CIVIL ACTION
Case No. 11-CV-2656-JAR-DJW
MEMORANDUM AND ORDER
This matter is before the Court on the State of Kansas’ Motion to Intervene (“Motion”)
(ECF No. 7). Defendant Kenneth L. Salazar, in his official capacity as Secretary of the United
States Department of the Interior (“Department”), does not oppose the Motion.
Plaintiff
Wyandotte Nation (“Wyandotte”), a federally-recognized Indian tribe, opposes the Motion. For
the reasons set forth below, the Motion is granted.
I.
Background
On July 26, 2011, Wyandotte initiated this action challenging the Department’s failure to
accept title to a tract of land known as the “Park City Tract” into a trust created for Wyandotte’s
benefit as allegedly required by the Land Claim Settlement Act (“PL 602”).1 PL 602 provides a
mechanism to satisfy certain judgments entered by the Indian Claims Commission in favor of
Wyandotte against the United States. Specifically, PL 602 provides “for the use and distribution
of certain funds awarded the Wyandotte Tribe of Oklahoma,” and, among other things, mandated
that a “sum of $100,000 . . . shall be used for the purchase of real property which shall be held in
trust by the Secretary [of the Interior] for the benefit of [the] Tribe” (“PL 602 Funds”).2
Wyandotte alleges that, on November 25, 1992, it purchased the Park City Tract, a tract
of land in Park City, Kansas, with PL 602 Funds. On January 21, 1993, Wyandotte then
submitted an application requesting that the Department take the Park City Tract into trust
pursuant to PL 602.
This request was transmitted from a Department field office to the
Washington, D.C. office for further review on February 19, 1993. But the Department never
took any action on the request.
In 1995, Wyandotte states that it purchased a second tract of land with the PL 602 Funds
in Kansas City, Kansas (“Shriner Tract”) and requested that the Department accept that tract of
land into trust. In 1996, the Department accepted the Shriner Tract of land into trust, and
approved gaming activities on that property under the Indian Gaming Regulatory Act (“IGRA”).3
After approximately five years of litigation, the Tenth Circuit concluded that the Department
acted arbitrarily in determining whether only PL 602 Funds were used to purchase the Shriner
1
Pub. L. No. 98-602.
2
Id. §§ 101(b); 105(b)(1).
3
25. U.S.C. § 2701, et seq. See also Sac & Fox Nation of Mo. v. Babbitt, 92 F. Supp. 2d 1124
(D. Kan. 2000), aff’d in part, rev’d in part and remanded sub nom Sac & Fox Nation of Mo. v.
Norton, 240 F.3d 1250 (10th Cir. 2001).
2
Tract and also erred in approving gaming activities on the land.4 The Tenth Circuit then
remanded the matter to the Department for reconsideration of Wyandotte’s original request
regarding the Shriner Tract.
Following remand, in 2002, the Department determined that the Shriner Tract was
purchased with PL 602 Funds and affirmed its decision to accept the property in trust.
Wyandotte then began operating gaming facilities on the site. From 2002 to 2010, Wyandotte,
Kansas and other Indian tribes have engaged in extensive litigation surrounding the Shriner Tract
and Wyandotte’s ability to open a gaming facility on that land. Indeed, the Department’s
decision to accept the Shriner Tract into trust, and Wyandotte’s decision to operate a gaming
facility on the site spawned multiple lawsuits. On April 13, 2006, and during the litigation
regarding the Shriner Tract, Wyandotte resubmitted its application to have the Park City Tract
purchased in 1992 taken into trust pursuant to PL 602. Like the Shriner Tract, Wyandotte
intends to operate a gaming facility on the Park City Tract.5 But the Department has not yet
acted on Wyandotte’s revived application.
In its lawsuit against the Department, Wyandotte alleges that “despite [Wyandotte’s]
repeated requests and its undeniable need for prompt action, the Secretary [of the Interior] has
refused to act on the Park City Land trust acquisition, to provide any reasonable explanation for
his delay, or even to specify a date by which he will act.”6 Consequently, Wyandotte filed this
lawsuit on July 26, 2011, seeking a writ of mandamus pursuant to 28 U.S.C. § 1361 to compel
the Department to accept trust title to the Park City Tract (Count I); a finding that the
4
See Sac & Fox Nation, 240 F.3d at 1253.
5
See ECF No. 6, Ex. C.
6
Compl. ¶ 31.
3
Department violated the Administrative Procedure Act7 (Count II); and a determination that the
Department breached trust obligations owed to Wyandotte (Count III).8 The Complaint was filed
in the United States District Court for the District of Columbia.
On September 9, 2011, before filing an Answer, the Department moved to transfer this
case, pursuant to 28 U.S.C. § 1404(a), to this Court. While the Motion to Transfer (ECF No. 6)
was pending, on September 20, 2011, Kansas filed the pending Motion. On November 22, 2011,
the United States District Court for the District of Columbia granted the Department’s Motion to
Transfer the case to this Court and, because the motion to transfer was granted, the court
withheld any judgment on Kansas’ Motion (ECF No. 17). This Court has reviewed the briefing
on the current Motion and is prepared to rule.
II.
Summary of the Parties’ Arguments
1.
Kansas’ Arguments
Kansas argues that it should be permitted to intervene as a matter of right under Rule
24(a) of the Federal Rules of Civil Procedure.
Kansas asserts that it meets all of the
requirements for intervention as of right under Rule 24(a). First, Kansas argues that its Motion
was timely filed because it was filed before any significant action had been taken in the case and
granting the Motion would not prejudice the other parties. Kansas additionally argues that it has
two significant, protectable interests that warrant intervention as of right. The first interest that
Kansas contends is at stake in this matter is its sovereign interest in exercising power over the
individuals and land within its geographic boundaries. Kansas notes that if the Park City Tract is
7
5 U.S.C. § 701, et seq.
8
Compl. ¶¶ 33–50.
4
taken into trust, it will lose its authority to enforce state laws on that tract of land, including labor
laws, liquor laws, sales taxes, and health and safety laws.
The second protected interest that Kansas claims is affected by this litigation is their
competitive and economic interest in preventing the Park City Tract from being taken into trust
by the Secretary. Under the IGRA, Wyandotte will be able to conduct gaming activities on the
Park City Tract only if the Department takes title to the tract in trust.9 Moreover, Wyandotte has
expressed its intention to conduct gaming facilities on the Park City Tract.10 Kansas recently
began granting permits to a limited number of casinos to be built and operated in the state. One
of the state-sanctioned casinos (“Mulvane Casino”) is located near Mulvane, Kansas, which is
approximately twenty-five miles from the Park City Tract. Although Kansas has granted a third
party the right to operate the Mulvane Casino, Kansas is entitled to a percentage of the revenue it
generates and anticipates an increase in tax revenue once it is operational. Kansas has calculated
that it would lose more than $23 million annually if Wyandotte constructs and operates a casino
on the Park City Tract. Thus, Kansas argues that it has a significant and legally protected
economic and competitive interest in this matter because its outcome will likely control whether
Wyandotte may proceed to establish a gaming facility on the Park City Tract.
Kansas also argues that once its legally-protected, significant interests are established, it
follows that its ability to protect these interests will be impaired if it is denied intervention.
Because Kansas would lose its ability to enforce its laws on the Park City Tract if Wyandotte is
successful in this action, Kansas asserts that its significant interest in maintaining sovereignty
over the Park City Tract could be impaired by the outcome of this mater. Kansas argues that the
9
See 25 U.S.C. § 2710(b)(1); 25 U.S.C. § 2703(4).
10
ECF No. 6-4.
5
removal of land within its territorial boundaries from state control, as would happen if
Wyandotte prevails in this matter to compel the Department to take the Park City Tract into trust,
constitutes a significant impairment of its right as a sovereign state. Further, Kansas argues that
their economic and competitive interests in the gaming industry near the Park City Tract could
be impacted by the outcome of this matter. Specifically, Kansas alleges that its financial interest
in the Mulvane Casino will be directly impaired if Wyandotte prevails in the present action. If
Wyandotte prevails and the Department is forced to take the land into trust, Kansas argues,
Wyandotte would then be able to pursue its stated goal of opening a gaming facility on the Park
City Tract that would directly compete with, and negatively impact, the state’s financial and
competitive interest in the Mulvane Casino.
Kansas also argues that its interests are not adequately represented by the parties to this
litigation. Stressing the minimal requirements of this inquiry, Kansas asserts that the Department
does not share its interests in exercising sovereignty over the Park City Tract or its economic and
competitive interests in preventing a gaming facility from competing with the Mulvane Casino.
Because the Department does not share either of Kansas’ purported interests in the outcome of
the litigation, Kansas argues that its interests would be inadequately protected by the
Department.
Finally, Kansas argues that it satisfies all standing requirements under Article III of the
United States Constitution and any prudential standing considerations. Kansas alleges that its
interest in this matter satisfies the three-pronged inquiry for Article III standing, which requires
(1) injury-in-fact, (2) causation, and (3) redressability.
The injury-in-fact requirement is
allegedly satisfied by Kansas’ interests that purportedly justify intervention as of right. Kansas’
right to taxing and regulatory authority over land within its borders and its economic and
6
competitive interests in the Mulvane Casino would be injured if Wyandotte prevails in this
matter. Kansas argues that the causation element of standing is satisfied because the merits of
this case involve whether the Department must take the Park City Tract into trust. If the Park
City Tract is taken into trust, Kansas argues, it will cause the alleged injury to Kansas’ sovereign
and economic rights. Kansas also argues that it satisfies the redressability requirement for
standing because a favorable disposition of this matter would prevent the Park City Tract from
being taken into trust. Kansas asserts that if the land is not taken into trust, both of its purported
interests would be protected.
Lastly, Kansas argues that there are no prudential standing
considerations that should bar its intervention in this matter. Although Kansas alleges that
prudential standing may not even be an appropriate inquiry for analyzing intervention as of right,
it asserts that prudential considerations should not prevent its intervention because the ultimate
outcome of this matter is clearly within its zone of interest. Because Kansas asserts a protectable
legal interest closely related to the outcome of this matter, it argues that it falls within the
prudential zone of interest test and that no prudential considerations bar its intervention.
In conclusion, Kansas argues that they should be allowed to intervene as of right under
Rule 24(a) because its motion is timely, it has legally-protected and significant interests in the
outcome of the litigation, its interests could be impaired by this action, its interests are not
adequately represented by a party to the action, and it satisfies any standing requirements for
intervention as of right. Because all of these factors are satisfied, Kansas’ argument concludes, it
is entitled to intervene as of right in this matter under Rule 24(a).
In the alternative, if intervention as a matter of right is denied by this Court, Kansas
argues that it should be allowed to permissively intervene under Rule 24(b) of the Federal Rules
of Civil Procedure. Kansas argues that it should be granted permissive intervention because it
7
meets any jurisdiction requirements, filed a timely motion and has a claim or defense that
involves a common question of law or fact with the present matter.
2.
Wyandotte’s Arguments
Wyandotte opposes Kansas’ Motion, arguing that neither intervention as a matter of right
nor permissive intervention should be granted in this matter. Wyandotte asserts that Kansas’
Motion should be denied primarily because this matter involves the narrow issue of whether the
Department must take the Park City Tract into trust and Kansas has no legally protected interest
in the outcome of this action. Wyandotte concludes that granting Kansas’ Motion would invite
the re-litigation of issues settled in prior cases and the interjection of irrelevant issues.
Accordingly, Wyandotte urges the Court to deny Kansas’ Motion in its entirety.
Wyandotte argues that Kansas should be denied intervention as of right because it does
not have a legally cognizable interest that could be impaired by this matter. Wyandotte describes
this case simply, concerning only whether the Department has failed to satisfy its legallyrequired obligation, as established in prior litigation, to take the Park City Tract into trust
because it was purchased with PL 602 funds. Because this matter deals only with this narrow
issue, Wyandotte’s argument continues, Kansas has no legally protected interest in its outcome.
Wyandotte argues that Kansas’ purported interests in the outcome of this matter are not legally
protected because PL 602 imposes a mandatory duty on the Department to take the land into
trust. Wyandotte asserts that this mandatory duty was established in prior litigation, and any
arguments that Kansas might raise against it are barred by res judicata or claim preclusion.
Consequently, Wyandotte contends that any right Kansas might have in the litigation is not
legally protected. Therefore, intervention as a matter of right should be denied.
8
Wyandotte also asserts that Kansas does not have Article III standing for intervention in
this matter.
Wyandotte argues that Kansas lacks Article III standing because a favorable
decision would not redress Kansas’ alleged injury because the counter-claims and cross-claims
contained in its proposed answer are allegedly barred by res judicata. Consequently, Wyandotte
concludes, Kansas lacks Article III standing for intervention.
Wyandotte also opposes Kansas’ Motion for permissive intervention. Wyandotte urges
the Court to reject Kansas’ alternative request for permissive intervention because granting
permissive intervention would unduly delay or prejudice the existing parties in violation of Rule
24(b)(3).11 Because Wyandotte alleges that Kansas intends to raise issues and claims that have
already been decided and are irrelevant to the determination of this action, they urge the Court to
reject Kansas’ request for permissive intervention due to the mandatory considerations in Rule
24(b)(3). Wyandotte argues that Kansas has raised these issues in past litigation, and permitting
intervention for it to do so again will defeat the purpose of permissive intervention.
Consequently, Wyandotte argues that permissive intervention should be denied.
3.
Department’s Arguments
Defendant Department does not oppose Kansas’ Motion. But the Department does not
concede this Court’s jurisdiction to hear the counter-claims and cross-claims contained in
Kansas’ proposed Answer.
III.
Discussion
1.
Intervention As Of Right
Rule 24(a) of the Federal Rules of Civil Procedure requires that “[o]n timely motion, the
court must permit anyone to intervene who claims an interest relating to the property or
11
See Fed. R. Civ. P. 24(b)(3) (“In exercising its discretion, the court must consider whether the
intervention will unduly delay or prejudice the adjudication of the original parties’ rights.”)
9
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.”12 The United States Court of Appeals for the Tenth
Circuit closely follows the explicit requirements of Rule 24(a) when deciding whether to permit
an intervention as of right.13 The standard in the Tenth Circuit is that a movant is entitled “to
intervene as of right if: (1) the movant claims an interest relating to the property or transaction
that is subject of the action; (2) the disposition of the litigation may, as a practical matter, impair
or impede the movant’s interest; and (3) the existing parties do not adequately represent the
movant’s interest.”14
The Tenth Circuit has held that the “factors are not rigid, technical
requirements,” but are meant to “capture the circumstances in which the practical effect on the
prospective intervenor justifies its participation in the litigation.”15 Nonetheless, “[f]ailure to
satisfy any one of these requirements is a sufficient ground to deny the application,” and
accordingly, Kansas must demonstrate that it satisfies all of the elements required for
intervention as of right.16 With this standard in mind, the Court will address each factor for
intervention as of right.
12
Fed. R. Civ. P. 24(a).
In addition to the factors enunciated in the Tenth Circuit, some circuits, including the District
of Columbia Circuit, have required that an intervenor have standing under Article III of the
United States Constitution and prudential standing in accordance with standards developed by
the courts.
13
14
WildEarth Guardians v. Nat’l Park Serv., 604 F.3d 1192, 1198 (10th Cir. 2010).
15
San Juan Cnty. v. United States, 503 F.3d 1163, 1195 (10th Cir. 2007) (en banc).
16
Koch v. Koch Indus., Inc., 6 F. Supp. 2d 1185, 1188 (D. Kan. 1998) (internal quotations
omitted).
10
A.
Timeliness
The first requirement for intervention as of right is that the motion to intervene be
timely.17 Rule 24 does not impose an actual time limit for the filing of a motion to intervene, but
instead permits a district court to exercise its discretion in determining timeliness.18 A decision
by the Court granting Kansas’s Motion at this point in the litigation would not prejudice
the parties or waste judicial resources. Furthermore, neither party here disputes Kansas’s Motion
was timely. Accordingly, the Court finds that the Motion was timely filed.
B.
The Intervenor’s Interest
Whether the party seeking intervention has an interest relating to the litigation is a broad
inquiry, requiring the Court to assess only “the practical effect of the litigation” on the movant’s
interest.19 The assessment is inclusive, and the Court should permit the involvement of “as many
apparently concerned persons as is compatible with efficiency.”20 Under the practical impact
assessment, the movant’s relationship with the property or transaction that is the subject of the
action is determinative.21 While other Circuits require the movant have a “direct, substantial,
and legally protectable” (DSL) interest, the Tenth Circuit’s emphasis on the practical effect of
intervention includes interests broader than—but often inclusive of—DSL interests.22 Although
the Tenth Circuit has held that “an interest that clearly satisfies all [of the DSL] conditions would
17
See Fed. R. Civ. P. 24(a) (requiring that motions to intervene be “timely”).
18
Wyandotte Nation v. City of Kan. City, 200 F. Supp. 2d 1279, 1287 (D. Kan. 2002).
19
San Juan Cnty., 503 F.3d at 1193.
20
Id. at 1195.
21
WildEarth Guardians, 604 F.3d at 1198.
22
San Juan Cnty., 503 F.3d at 1193.
11
likely justify intervention,”23 it is clear that “other interests may also suffice.”24 Therefore,
intervention as of right under Rule 24(a) “requires courts to exercise judgment based on the
specific circumstances of the case.”25 Accordingly, the Court must balance the strength of the
moving party’s purported interest and the risk that it could be adversely affected by the litigation
with the potential for undue delay, inefficiency or prejudice to the current parties.26
The Court finds that Kansas’ asserted interest in exercising sovereignty over people and
land that are physically located within its territory constitutes a legally protectable interest
justifying intervention as of right. It is undisputed that the Park City Tract is wholly within
Kansas’ territorial boundaries and that the state currently has sovereignty over it, including
taxing, regulatory and legal authority. Although never specifically addressed in this context, the
Supreme Court has recognized that states have an important interest in sovereignty over territory
within the state’s boundaries.27 This recognized interest must not be ignored in the context of
Rule 24. In light of the Tenth Circuit’s practical impact inquiry regarding a movant’s purported
interest, moreover, it is abundantly clear that Kansas has an interest in the outcome of this
litigation. Under the specific facts of this case, Kansas has an important relationship with the
Park City Tract because it currently has regulatory and taxing authority over it. The practical
impact of this litigation could be to decimate Kansas’ sovereign interest over the Park City Tract
entirely. While this interest would almost certainly meet the DSL standard applicable in other
23
Id. at 1194.
24
Id. at 1195.
25
Id. at 1199 (citing Utah Ass’n of Counties v. Clinton, 255 F.3d 1246, 1251 (10th Cir. 2001).
26
See id.
27
See Alford L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 601–04 (1982) (discussing a
state’s interest in exercising sovereignty over territory within its boundaries).
12
circuits, it clearly satisfies the practical impact requirements of the Tenth Circuit. Moreover,
Wyandotte has failed to show that granting Kansas’ Motion would be unduly prejudicial.
Although Wyandotte asserts that any claims Kansas might raise are barred by res judicata, a
conclusory statement about Kansas’ intentions is insufficient to establish that unfair prejudice
outweighs Kansas’ interest in this litigation. Accordingly, the Court is satisfied that Kansas has
an interest in the outcome of the litigation that is sufficient to support intervention as a matter of
right.
The Court concludes that Kansas’ interest in exercising sovereignty over people and land
within its territorial boundaries constitutes a significant and legally protectable interest. Thus,
the Court need not consider whether Kansas’ alleged interest in preventing the establishment of a
casino that would compete with the state-operated casino in which Kansas has an economic
interest would similarly constitute a legally protectable and significant interest that could justify
intervention as of right. Accordingly, the Court expresses no opinion as to whether Kansas’
purported economic and competitive interests in a casino are sufficient to justify intervention
under Rule 24(a).
C.
Impairment of Interest
Whether the interest of the party seeking intervention as of right may be impaired by the
litigation is a minimal burden, requiring a showing only that denial of intervention could
possibly impair a substantial legal interest.28 The court may consider any legal impairment—
analysis is not restricted to “a rigid res judicata test.”29 The stare decisis effect of an adverse
28
WildEarth Guardians, 604 F.3d at 1199
29
Coal. of Ariz./N.M. Counties for Stable Economic Growth v. Dep’t of Interior, 100 F.3d 837,
841 (10th Cir. 1996).
13
judgment is a sufficient impairment for intervention as of right.30
Moreover, an alleged
impairment or impediment of a legal interest “need not be ‘of a strictly legal nature.’”31 Interest
and impairment are not independent elements, and strong interests require less potential
impairment than uncertain interests, which must show a more significant potential impairment.32
The Court is satisfied that Kansas has met its minimal burden of showing the potential
that its interest in exercising sovereignty over the Park City Tract may be impaired if
intervention is denied. It is not necessary to show that Kansas’ rights are guaranteed to be
impaired by the litigation, and it is irrelevant that impairment may not occur even if Wyandotte
prevails.33 Kansas satisfies the burden of showing the potential for impairment because if this
Court grants the relief requested by Wyandotte, Kansas’ interest—sovereignty over the Park City
Tract—will be terminated when the Department takes the land into trust. Consequently, Kansas’
protected interest is at the center of this action. As discussed above, moreover, Kansas’ interest
in sovereignty is a strong interest. Because the requested relief would completely destroy
Kansas’ important legal interest, Kansas has demonstrated that a significant impairment of that
interest could result from this action. Accordingly, Kansas satisfies the impairment of interest
requirement for intervention as of right under Rule 24.
30
Id. at 844.
31
Id. (quoting Natural Res. Def. Council, Inc. v. U.S. Nuclear Regulatory Comm’n, 578 F.2d
1341, 1345 (10th Cir. 1978)).
32
San Juan Cnty., 503 F.3d at 1195. See also Fed. Deposit Ins. Corp. v. Jennings, 816 F.2d
1488, 1492 (10th Cir. 1987) (interest and impairment are intertwined ).
33
Id. at 1200.
14
D.
Adequacy of Representation
Having found that Kansas has articulated a legally protected right that could be impaired
by the outcome of the litigation, the Court must consider whether Kansas’ interests are
adequately represented by an existing party. This too is a minimal burden, requiring the movant
to show only the possibility that the representation may be inadequate.34 The Court thus must
examine “the posture of the parties currently in the lawsuit.”35 The party seeking intervention
may show inadequacy of representation if there is a “divergence of interest” between the movant
and its purported representative.36 Moreover, although the burden to demonstrate a divergence
of interest is on the movant, “the possibility of divergence need not be great.”37 Showing that the
ostensible representative will fail to represent the movant’s interest may justify intervention.38
Representation of the movant’s interest is adequate, however, “‘when the objective of the
applicant for intervention is identical to that of one of the parties.’”39
No party to this action can or will adequately represent Kansas’ significant interest in the
matter.
Clearly, Wyandotte’s interest in having the Park City Tract taken into trust, thus
removing it from Kansas’ jurisdiction, is in direct conflict with Kansas’ interest in the land. The
34
WildEarth Guardians, 604 F.3d at 1199. See also Trbovich v. United Mine Workers of Am.,
404 U.S. 528 538 n.10 (1972) (“The requirement of the Rule is satisfied if the applicant shows
that representation of his interest ‘may be’ inadequate; and the burden of making that showing
should be treated as minimal.”) (citations omitted).
35
Wyandotte Nation, 200 F. Supp. 2d at 1288.
36
See Natural Resources Def. Council, 578 F.2d at 1346.
37
Id.
38
See Sanguine, Ltd. v. U.S. Dep’t of Interior, 736 F.2d 1416, 1419 (10th Cir. 1984).
39
City of Stilwell v. Ozarks Rural Elec. Coop., 79 F.3d 1038, 1042 (10th Cir. 1996) (quoting
Bottoms v. Dresser Indus., Inc., 797 F.2d 869, 872 (10th Cir. 1986)).
15
Court is additionally satisfied that the Department will not adequately represent Kansas’ interests
in this litigation. Kansas has met the minimal burden of demonstrating a divergence of interest
between it and the Department. Unlike Kansas, the Department has no interest in the exercise of
sovereignty over the people and land within the boundaries of the state. In addition to the
Department’s lack of an identical interest with Kansas, there is a great potential for a divergence
of interest in this case. Unlike Kansas’ interest in protecting its taxing and regulatory authority
over land and people within its territory, the Department’s interest in this case is discharging its
statutory and policy-related duties as established by Congress.
Kansas will likely oppose
Wyandotte’s action to have the Park City Tract taken into trust regardless of the Department’s
policy position, which very well could change with respect to the land at issue. This would
create an obvious and not unlikely divergence of interest. Although the Department is currently
opposing Wyandotte’s action to have the land taken into trust, it is clearly doing so for reasons
entirely unrelated to Kansas’ interest in exercising sovereignty over the Park City Tract.
Because the possibility of divergence need not be great under this liberal standard, Kansas has
satisfied the Court that there is a strong likelihood that neither Wyandotte nor the Department
can or will adequately represent its interest.
E.
Standing
In addressing whether Article III standing must be established by a party seeking to
intervene in a matter, “circuit courts . . . have reached different results.”40 But in the Tenth
Circuit, parties seeking to intervene as of right need not show independent Article III standing
“so long as another party with constitutional standing on the same side as the intervenor remains
40
San Juan Cnty. v. United States, 420 F.3d 1197, 1204 (10th Cir. 2005).
16
in the case.”41 Furthermore, the Tenth Circuit has never used prudential standing concerns to
deny a party’s motion to intervene.
Although the parties briefed the issue of standing in
accordance with the law in the District of Columbia Circuit, this Court will not consider standing
because it is not a prerequisite for intervention in the Tenth Circuit. Accordingly, as long as a
party with constitutional standing remains in the case on the same side as Kansas, Kansas
satisfies any standing requirements for intervention under Rule 24.
F.
Conclusion on Intervention as of Right
For the foregoing reasons, Kansas satisfies all of the elements required for intervention as
of right under Rule 24(a) and established Tenth Circuit precedent. Accordingly, its Motion is
granted.
2.
Permissive Intervention
In the alternative to intervention as of right under Rule 24(a), Kansas requests that this
Court grant it permissive intervention under Rule 24(b). Because the Court grants Kansas’
Motion with respect to intervention as of right, it does not reach the issue of whether Kansas
should be allowed to permissively intervene.
IT IS THEREFORE ORDERED that Kansas’ Motion to Intervene (ECF No. 7) is
granted.
IT IS SO ORDERED.
Dated in Kansas City, Kansas, on this 11th day of April, 2012.
s/ David J. Waxse
David J. Waxse
United States Magistrate Judge
cc:
41
All counsel
San Juan Cnty., 503 F.3d at 1172.
17
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