Ute Indian Tribe of the Uintah and Ouray Reservation v. McKee et al
Filing
53
MEMORANDUM DECISION AND ORDER DENYING PROPOSED INTERVENORS' MOTION FOR LEAVE TO INTERVENE -The Proposed Intervenors Notice of Motion for Leave to Intervene, 43 is DENIED and denying 49 Motion to Intervene. Because they are not permitted to intervene, the Proposed Intervenors are not allowedto submit filings in this case. Signed by Judge Clark Waddoups on 5/1/19. (jmr)
UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
UTE INDIAN TRIBE OF THE UINTAH &
OURAY RESERVATION,
Plaintiff,
MEMORANDUM DECISION AND
ORDER DENYING PROPOSED
INTERVENORS’ MOTION FOR
LEAVE TO INTERVENE
v.
GREGORY D. MCKEE, T & L
LIVESTOCK, INC., MCKEE FARMS, INC,
AND GM FERTILIZER, INC.,
Civil Case No. 2:18-cv-00314
Judge Clark Waddoups
Defendants.
Before the court are a “Notice of Motion for Leave to Intervene, and Memorandum in
Support” filed by Proposed Intervenors “Uinta Utah Indians and Tabequache Colorado Indian,”
(ECF No. 43) and “Plaintiff-Intervenor Motion for Leave to File Emergency Restraining Order
and File Reply of Points and Authorities in Support.” (ECF No. 49.) These submissions were
filed by four pro se individuals, Mary Carol M. Jenkins, Tara Amboh, Angelita Chegup, and
Lynda M. Kozlowicz. For the reasons stated below, the court DENIES the Notice of Motion for
Leave to Intervene, (ECF No. 43) and finds the second submission, (ECF No. 49) MOOT.
Background
On or around September 4, 2013 the Ute Indian Tribe filed a First Amended Complaint
against Gregory D. McKee, T&L Livestock, Inc., McKee Farms, Inc., and GM Fertilizer, Inc.
(See ECF No. 2-2 at 3) for “Misappropriation, Theft, and/or Conversion of Water” in the Ute
Indian Tribal Court. (Compl. ¶ 13, ECF No. 2 at 5.) “The Ute Indian Tribal court held a trial on
the matter on July 13, 2015.” (Compl. ¶ 17, ECF No. 2 at 6.) “Despite having filed an answer
and receiving notice of the trial, Defendants did not participate in the trial.” (Compl. ¶ 17, ECF
No. 2 at 6.) On August 3, 2015, the Ute Indian Tribal Court entered its Findings of Fact and
Conclusions of Law. (ECF No. 2-3 at 28.) On September 29, 2015 the Ute Indian Tribal court
entered a Final Judgment for Damages and Permanent Injunction. (See ECF No. 2-3 at 57.) On
April 17, 2018, Plaintiff filed its Complaint in this court to “recognize, register, and enforce a
tribal court money judgment . . . .” (Compl. ¶ 1, ECF No. 2 at 2.)
On February 13, 2019, the proposed intervenors filed their “Notice of Motion for Leave
to Intervene.” (ECF No. 43.) In this Notice, the proposed intervenors state that they “intend[] to
move, and hereby move[] for leave to intervene in this mater as matter or right pursuant to Rule
24(a)(2) of the Federal Rules of Civil Procedure . . . and alternatively for permissive intervention
under Rule 24(b) . . . .” (ECF No. 43 at 7–8.) The proposed intervenors argue that they have a
“significant protectable interest in this litigation” “in ensuring that [the] water rights are available
for the Intervenor’s and individual allottees to develop the Uinta Utah Indian’s trust land base
Uinta Valley Reserve, and for Tabequache Colorado treaty Indian’s to claim Tabequache
Colorado Reserve as their viable homelands.” (ECF No. 43 at 12.)
On February 27, 2019, Plaintiff filed its Opposition to the Proposed Intervenors’ Motion.
(ECF No. 45.) Plaintiffs argue that “Movants do not claim an interest relating to the property or
transaction at issue in this proceeding.” (ECF No. 45 at 3.) Plaintiff further argues that “[t]his
action does not involve the adjudication of water rights, and Movants have asserted no interest in
this determination of whether a tribal court judgment should be recognized.” (ECF No. 45 at 3.)
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For this reason among others, Plaintiff argues that the Proposed Intervenors’ Motion for
intervention as a matter right should be denied. (ECF No. 45 at 3.) Plaintiff also argues that the
Proposed Intervenors’ Motion for permissive intervention should also be denied. (ECF No. 45 at
5.)
On February 27, 2019, Defendants also filed an Opposition to the Proposed Intervenors’
Motion, in which they argued:
[t]he only issues in this matter are whether the Tribal Court has jurisdiction to
enter and enforce the Tribal Court Judgment and whether the Tribal Court
afforded Defendants due process. There are no other ‘rights’ to be determined by
the litigation before this Court. Movants have failed to articulate any ‘interest’
that might be impaired or inadequately represented without their presence in the
litigation and have failed to demonstrate any reason why this Court should permit
them to intervene. The Court should deny the Motion.
(ECF No. 46 at 2.)
On March 14, 2019, the Proposed Intervenors filed a “Motion for Leave to File
Emergency Restraining Order and File Reply of Points and Authorities in Support.” (ECF
No. 49.)
Analysis
Intervention as of Right
“Federal Rule of Civil Procedure 24(a) states non-parties may intervene in a pending
action as of right if: ‘(1) the application is timely; (2) the applicants claim an interest relating to
the property or transaction which is the subject of the action; (3) the applicants’ interest may as a
practical matter be impaired or impeded; and (4) the applicants’ interest is not adequately
represented by existing parties.’” W. Energy All. v. Zinke, 877 F.3d 1157, 1164 (10th Cir. 2017)
(citation omitted).
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The court concludes that the Proposed Intervenors have failed to assert an interest
relating to the subject of this ligation. The Proposed Intervenors “must establish an interest in the
property or transaction underlying the action that might be impaired by the action’s disposition.”
Tri-State Generation & Transmission Ass'n, Inc. v. New Mexico Pub. Regulation Comm’n, 787
F.3d 1068, 1071 (10th Cir. 2015) (bold added). The court agrees with both Plaintiff and
Defendants that the Proposed Intervenors fail to establish an interest in this action. For the
reasons stated by both parties, the court agrees that “Movants cannot demonstrate that they have
legal or equitable interest in the Tribe’s action to enforce the Tribal Court Judgment.” (ECF No.
46 at 4.) Because the Proposed Intervenors have failed to satisfy the second requirement for
intervention as a right, the court declines to address the remaining requirements. The Proposed
Intervenors’ Motion for Intervention as a Right is DENIED.
Permissive Intervention
“Rule 24(b)(1)(B) governing permissive intervention provides that, on timely motion, the
court may permit anyone to intervene who ‘has a claim or defense that shares with the main
action a common question of law or fact.’” Tri-State, 787 F.3d at 1074. “Permissive intervention
is a matter within” the court’s discretion. Kiamichi R. Co. v. Nat'l Mediation Bd., 986 F.2d 1341,
1345 (10th Cir. 1993). Additionally, other courts in this district have “also stated that another
determinable factor is whether the interveners will significantly contribute to the full
development of the underlying factual issues in the suit and to the just and equitable adjudication
of the legal questions presented.” Utah ex rel. Utah State Dep't of Health v. Kennecott Corp.,
232 F.R.D. 392, 398 (D. Utah 2005) (quotation omitted) (citation omitted).
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The court agrees with the Defendants that the Proposed Intervenors have failed to
articulate any “claim or defense that has a common question of law or fact with the Tribe’s
action to enforce the Tribal Court Judgment.” (ECF No. 46 at 11.) The court also finds that the
Proposed Intervenors will not “contribute to the full development of the underlying factual issues
in the suit and to the just and equitable adjudication of the legal questions presented.” Kennecott
Corp., 232 F.R.D. at 398. The court DENIES the Proposed Intervenors’ Motion for Permissive
Intervention.
Conclusion
The Proposed Intervenors’ “Notice of Motion for Leave to Intervene,” (ECF No. 43) is
DENIED. Because they are not permitted to intervene, the Proposed Intervenors are not allowed
to submit filings in this case. The Proposed Intervenors’ “Motion for Leave to File Emergency
Restraining Order and File Reply of Points and Authorities in Support,” (ECF No. 49) is
DENIED as MOOT.
DATED this 1st day of May, 2019
BY THE COURT:
CLARK WADDOUPS
United States District Judge
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