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The Kennewick Man Case | Court Documents | Communications with the CourtJoint Tribal Claimants Memorandum to InterveneRob Roy Smith, OSB 00393 FOR THE DISTRICT OF OREGON ROBSON BONNICHES, et al., Plaintiffs v. UNITED STATES OF AMERICA, et al., Defendants JOINT TRIBAL CLIMANTS MEMORANDUM IN SUPPORT OF MOTION FOR INTERVENTION FOR PURPOSES OF APPEAL Pursuant to Fed. R. Civ. P. 24(a) and 24(b) Expedited Hearing Requested INTRODUCTION Defendant/Intervenor Applicants Nez Perce Tribe, Confederated Tribes of the Umatilla Indian Reservation, Confederated Tribes and Bands of the Yakama Nation and Confederated Tribes of the Colville Reservation (collectively Joint Tribal Claimants or Applicants) seek to intervene for purposes of appealing interpretations of the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C.§ 3001 et seq. in this Court's Order and Opinion of August 30, 2002. Time is of the essence as this Court's order has lifted the protections for the ancient native remains at issue in this case, and allows imminent actions to go forward and adversely affect the Joint Tribal Claimants interests. in addition, the deadline to appeal this Court's order to the Ninth Circuit Court of Appeals is October 29, 2002. For these reasons, the Joint Tribal Claimants seek expedited review of their motion to intervene for purposes of appeal and have lodged with this court a Proposed Answer in Intervention filed herewith. Applicants are the claimants of the remains at issue and are the express beneficiaries of the challenged cultural affiliation determination. Each of the tribal claimants previously filed a formal joint claim for ownership of the remains, demonstrating a long and committed history of substantial involvement in this action to ensure the appropriate disposition of these ancient human remains. The issues in this case are of critical importance to the Joint Tribal Claimants and all Indian tribes throughout the United States. NAGPRA as enacted by Congress as remedial legislation to correct past practices among non-Indians which were injurious to Indian culture. The present litigation challenges an administrative action under that statute which conclusively determined the remains to be Native American and culturally affiliated with the Applicants, and it is important for the Court of Appeals to address this Court's interpretation of NAGPRA in light of the legal opinions of Indian tribes that are directly and adversely affected by this Court's order. NAGPRA presents matters of first impression for this court, and most of the statute's provisions have not been tested in other Federal courts. The Joint Tribal Claimants have not sought to intervene in this case previously because it appeared that the United States Department of the Interior and the United States Army Corps of Engineers (collectively federal defendants) adequately represented their interests (1). That situation is now changed. Since this Court's decision, the federal defendants have not acted in an expeditious manner to seek an appeal to defend their interpretation of the term Native American under NAGPRA, nor to defend their determination of cultural affiliation to ensure the prompt return of the remains to the Joint Tribal Claimants. To the contrary, the federal defendants missed the deadline for requesting that this Court withdraw or amend its judgment and the agencies have not moved for a stay pending appeal. The current delay and possible future inaction by federal defendants harms Applicants vested property right in the remains, and long-standing and substantial interests in ensuring the appropriate disposition of the human remains at issue to the claimant tribes. Under well-established Ninth Circuit case law, post-judgmental intervention for purposes of appeal is timely if made within the time period for filing an appeal. Because the federal defendants no longer adequately represent the claimant tribes interests, Applicants respectfully and timely request that this Court grant them leave to intervene for purposes of appeal. Counsel for Applicants has conferred with counsel for the federal defendants and counsel for Plaintiffs regarding this motion to intervene. Counsel for both plaintiffs and defendants indicated that they are unable to take a formal position on the claimant tribes intervention at this time because of the expedited nature of this filing. BACKGROUND AND NATURE OF CASE The Defendant/Intervenor Applicants are a coalition of federally-recognized Indian tribes who share a federally-protected property interest in the ancient human remains known to the claimant tribes as the Ancient One. The Joint Tribal Claimants, both individually and collectively, have specific rights and interests as they relate to the issues involved in this litigation regarding the handling and disposition of these human remains that differentiate them from the federal defendants. The human remains were found at Columbia Park within the Confederated Tribes of the Umatilla Indian Reservation's ceded territory, as recognized by the United States government in its 1855 treaty with the Confederated Tribes of the Umatilla Indian Reservation. The Nez Perce Tribe, Confederated Tribes and Bands of the Yakama Nation and Confederated Tribes of the Colville Reservation also traditionally used the area which now encompasses Columbia Park. Applicants are the express beneficiaries of the federal defendants cultural affiliation determination. Applicants have a lengthy history of working to ensure custody of the ancient native remains by providing documentation supporting cultural affiliation in the Administrative Record through statutorily-authorized consultation and fully participating as joint amicus curiae in briefing and oral argument before this Court. The final agency decision challenged in this case determined that the human remains were Native American and were culturally affiliated with the Applicants. Because Applicants have a substantial and consistently demonstrated interest in seeking the return and repatriation of the ancient human remains at issue, and have an ongoing stake in the outcome of tis litigation on appeal, Applicants should be granted leave to intervene for purposes of appeal as of right or with the Court's permission. ARGUMENT I. APPLICANTS ARE ENTITLED TO INTERVENE AS A MATTER OF RIGHT. The Joint Tribal Claimants are entitled to intervene for the purposes of appeal. Federal Rules of Civil Procedures Rule 24(a) provides that: [u]pon timely application anyone shall be permitted to intervene in an action... when the applicant claims an interest in relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties. In the Ninth Circuit, Rule 24 is construed broadly in favor of the applicants. Idaho Farm Bureau Fed n v. Babbitt, 58 F.3d 1392, 1397 (9th Cir. 1995); U.S. ex rel. McGough v. Covington Tech. Co., 967 F.2d 1391 (9th Cir, 1992); see also Federal Savings & Loan Ins. Corp. v. Falls Chase Special Taxing Dist., 983 F. 2d 211, 216 (11th Cir. 1993) (any doubt concerning propriety of intervention should be resolved in favor of proposed intervenors); Sierra Club v. Robertson, 960 F.2d 83, 86 (8th Cir. 1992) (same). The Ninth Circuit has established a four-part test for determining the applicability of Rule 24(a). Under this test, in order to qualify for intervention of sight: Fed. R. Civ. P. 24(a) establishes four requirements for intervention as of right: timeliness, an interest relating to the subject of the action, practical impairment of the party's ability to protect that interest, and inadequate representation by the parties to the action. The rule is construed broadly in favor of applicants for intervention. Greene v. United States, 996 F.2d 973, 976 (9th Cir. 1993) (citing United States v. State of Oregon, 913 F.2d 576, 587 (9th Cir. 1990), cert. denied, 501 U. S. 1250 (1991); see also Sagebrush Rebellion, Inc., v Watt 713 F.2d a525, 527 (9th Cir. 1983). Practical considerations guide courts in applying this test. [I]f any applicant would be substantially affected in a practical sense by the determination made in an action, [the applicant] should, as a general rule, be entitled to intervene.... Fed. R. Civ. P. 24(a)(2), Advisory Committee Note. Here, Applicants satisfy each of the intervention requirements under Rule 24(a). A. Applicants Motion for Intervention is Timely. The Joint Tribal Claimants motion for intervention is timely. If a motion to intervene is filed prior to judgment in a case, courts examine four factors to determine the timeliness of a motion to intervene: (1) the stage of the proceedings at which the applicant seeks to intervene; (2) the prejudice to the existing parties if intervention is allowed; and (3) the reasons for and length of the delay. County of Orange v. Air California, 799 F.2d 535, 537 (9th Cir. 1986), cert. denied, City of Irvine v County of Orange, 480 U.S. 946 (1987). However, [a] post-judgment motion to intervene is generally considered timely before the time of filing the appeal has expired. Tocher v City of Santa Anna, 219 F.3d 1040, 1044-45 (9th Cir. 2000) (granting post-judgment motion to intervene), cert. denied, 121 S. Cir. 1085 (2001); United States ex rel. Killingsworth v. Northrop Corp.,25 F.3d 715, 719 (9th Cir. 1994) (the court will consider a post-judgment motion to intervene to be timely if filed within the time limitations for filing an appeal). Applicants are filing their motion within one month of entry of judgment, a time period well within the 60 days for filing an appeal. For this reason, Applicants motion to intervene is timely. B. Applicants Have an Interest in the Subject Matter of this Action. The Joint Tribal Claimants have a substantial interest in the subject matter of this litigation. Rule 24(a) requires that an applicant for intervention possess an interest relating to the property of transaction that is the subject matter of the litigation. This interest test is not a rigid standard. Rather, it is a practical guide to disposing of lawsuits by involving as many apparently concerns persons as is compatible with efficiency and due process. County of Fresno v. Andrus, 622 F.2d. 436, 438 (9th Cir. 1980). No specific legal or equitable interest of sufficient magnitude to warrant inclusion the action. Greene, 996 F.2d at 976; Smith v. Pangilian, 651 F.2d 1320,1324 (9th Cir. 1981). Applicants are all federally-recognized Indian tribes who share and assert a protected property interest in the ancient human remains which are the subject of this litigation. See Sierra Club v. U.S. EPA,995 F.2d 1478,1482 (9th Cir 1993) (finding property rights raise a protectable interest that supports a motion for intervention). The Joint Tribal Claimants are substantially affected by this court's order setting aside both the federal defendants finding that the remains were Native American and that the remains were culturally affiliated with the Applicants requiring repatriation with the claimant tribes. Moreover, Applicants have already demonstrated a sufficient protectable interest in this matter by being granted status as amicus curiae to appear and participate in this case. This Court has recognized that the tribal interests in this case are substantial and satisfy this requirement for intervention. See Bonnichsen, Civ No. 96-1481-JE, Order Denying Intervention (finding substantial interest and impairment of ability to protect interest met). This involvement is more than sufficient to support intervention as of right under Rule 24(a). The Ninth Circuit has repeatedly concluded that intervention for purposes of appeal must be construed broadly in favor of the applicants to allow for the just and expeditious resolution of contested issues. The applicants were determined to be culturally affiliated with the Native American human remains at issue and have already proven a substantial interest in the subject matter of this action. C. Applicants Interests May Be Impaired as a Result of this Litigation. Absent intervention, the interests and rights of the Joint Tribal Claimants may be impaired. Rule 24(a) requires that an applicant for intervention as a matter of right be so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest. Fed. R. Civ. P. 24(a) (emphasis added). rule 24 refers to impairment as a practical matter. Thus the court is not limited to consequences of a strictly legal nature. Forest Conservation Council v. United States Forest Service, 6 F.2d 1341, 1345 (10th Cir. 198) (court may consider any significant legal effect on the applicant's interest.) As with the other prongs of the intervention test, the Ninth Circuit has interpreted this test liberally in favor of intervention. See e.g. Sagebrush Rebellion 713 F.2d at 52-28. This Court vacated the cultural affiliation determination in favor of the Applicants and provided for the study of human remains which the Joint Tribal Claimants sought to prevent. The federal defendants have neither moved to modify this Court's order nor for a stay pending appeal. A primary purpose of NAGPRA is to repatriate Native American human remains, associated funerary objects, sacred objects, and objects of cultural patrimony currently held or controlled by federal agencies and codify a broad role for tribal governments in preservation. See United States v. Corrow,119 F.3d 796, 799 (10th Cir. 1997). The federal defendants had determined that the remains at issue here were Native American and were culturally affiliated with the Applicants. The Court's decision to vacate this finding and the federal defendants failure to move quickly to support the cultural affiliation determination and prevent any further invasive study of the ancient human remains significantly impairs the Applicants interests in immediate repatriation of the remains. Applicants are adversely affected both by the disposition of this case, as well as the breadth of the opinion which calls into question the remedial purposes of NAGPRA. Without a timely appeal of the Court's decision, the Applicants have no ability to preserve their rights and ensure the return of the human remains to the Tribes. The Court's decision has, and will continue to adversely affect the Applicants interests by subjecting the remains to additional unwarranted invasive studies. These significant impacts satisfy the requirement of potential practical impairment of Applicants interests for intervention as of right. D. Applicants Interests Are Not Adequately Represented. Finally, the significant interests represented by the existing requirement of intervention as of right is satisfied if the applicant shows that the representation of its interests may be inadequate. Trbovich v. United Mine Workers, 404 U.S. 528, 538 n. 10 (1972). The burden of making this showing should be treated as minimal. Id. This Court has held that a party's interest will be adequately protected only if all tree of the following occur: (1) the interest of the present parties is such that they will undoubtedly make all the intervenors arguments; (2) present parties are willing to and capable of making such arguments; and (3) the intervenors will not offer any necessary element to the proceedings that the other parties will neglect. County of Fresno, 622 F.2d at 438-39; see also County of Orange 799 f.2d at 537; Blake v. Pallan, 554 F.2d 947, 954-55 (9th Cir. 1977). The conditions for adequate representation of the Joint Tribal Claimants ar not met here. Plaintiffs brought this action seeking to invalidate the federal defendants' decision that the remains were culturally affiliated with the claimant tribes and for unfettered access to conduct additional evasive (sic) studies on the remains. Clearly, the plaintiffs do not represent Applicants interests. The federal defendants also do not adequately represent Applicants' interests. Applicants did not seek to intervene earlier because the federal defendants were preparing and subsequently defending,their cultural affiliation determination. This is no longer the case. The federal defendants have not acted expeditiously to request that this Court modify or withdraw its order or for a stay of this Court's order pending appeal. The federal defendants have allowed the deadline for seeking to amend the judgment to pass without requesting relief. (2) Nor is it clear that the federal defendants will file and actively pursue an appeal of the district court decision. Even if they do, it is uncertain whether the federal defendants ar capable and willing to raise the same issues on appeal as the Joint Tribal Claimants. Considering the numerous legal issues at stake in this action, the interests of the Applicants and the federal defendants are no longer congruous. The federal defendants no longer adequately represent the Applicants interests in securing the return of the human remains to the claimant tribes and upholding a proper interpretation of NAGPRA. Based on the foregoing, the Joint Tribal Claimants have an intimate interest in appealing this action and more than satisfy the elements for intervention as of right. As such, this Court should grant intervention for purposes of appeal. II. APPLICANTS SATISFY THE STANDARDS FOR PERMISSIVE INTERVENTION. As demonstrated above, Applicants meet all of the requirements for intervention as of right under Fed. R. Civ. P. 24(a). However, should this Court deny Applicants application for intervention as of right to pursue appeal, Applicants should be granted permission to intervene under Federal Rule of Civil Procedure 24(b). Rule 24(b) provides for permissive intervention when an applicant's claim or defense and the main action have a question of law or fact in common. Fed. R. Civ. P. 24(b). Applicants defenses are both factually and legally related to the main action. Moreover, appliance intervention is timely and will not prejudice any of the existing parties or delay the appeal proceedings, and will significantly contribute to the just and equitable adjudication of the legal questions presented. Spangler v. Pasadena City Bd of Educ.,552 F.2d 1326, 1329 (9th Cir. 1977). Permissive intervention is a matter within the trial court's broad discretion. County of Orange, 799 f.2d at 539. Given the importance of the issues involved, the property right Applicants have at stake in this litigation, and the early stage of the appeal time period, permissive intervention to pursue an appeal should be allowed. CONCLUSION Resolution of this case will decidedly affect Applicants legally protected interests and there is sufficient doubt about the adequacy of representation of (sic) warrant intervention. Southwest Center for Biological Diversity v. Berg, 268 F.3d 810,824) 9th Cir. 2001) (quotation omitted). For the foregoing reasons and in light of the gravity of the issues at stake, the Joint Tribal Claimants respectfully request that this Court grant their motion to intervene as of right to appeal, or, in the alternative, for permissive intervention for purposes of appeal.Dated this 26th day of September,2002. /s Rob Roy Smith, OSB # 00393 /s David J. Cummings, OSB # 92269 /s Naomi Stacy, WSBA #29434 /s Melissa Camobasso, WSBA #30602 /s Thomas Zeilman, WSBA #28740 /s Tim Weaver, WSBA #3364 /s Thomas Schlosser, WSBA #6276 Footnotes (1) The Yakama Nation did not pursue intervention on its own in May 2000. See Bonnichsen v United States, Civ No. 96-1481-JE, Order Denying Intervention (D. Or. Aug. 2, 2000). The Court concluded that the Yakama Nation did meet two of the bases for intervention as of right, but denied the motion as untimely and because, at that time. the federal defendants were adequately representing their interests. Id. Permissive intervention was also denied on timeliness grounds. Id. In contrast, the federal defendants are no longer adequately representing the Applicants interests and timeliness has been satisfied by this motion.(back) (2) Amongst other criticisms, this Court reprehended the federal defendants for failing to take steps to clarify their evolving view of the Indian Claims Commission and aboriginal land issues. Opinion and Order at 58. The federal defendants have also failed to act to clarify this issue.(back)
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