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The Kennewick Man Case | Court Documents | Opinions and Orders

Judge Denies Yakama Nation's Motion

In the United States District Court
for the District of Oregon

Robson Bonnichsen, C. Loring Brace, George W. Gill, C. Vance Haynes, Richard L. Jantz, Douglas W. Owsley, Dennis J. Stanford, and D. Gentry Steele

United States of America, Department of the Army, U. S. Army Corps of Engineers, United States Department of the Interior, Bartholomew Bohn II, Donald R. Curtis and Lee Turner,

Order: Civil No. 96-1481-JE

Jelderks, Magistrate Judge:
The Confederated Tribes and Bands of the Yakama Nation (Yakama Nation) moves to intervene in this action. For the reasons set out below, I deny the motion.

The factual and legal background of this action has been thoroughly set out in several opinions and orders filed earlier (1), and need not be repeated here. As noted in those documents, the parties to this action include the plaintiff scientists and the federal defendants, with the Nez Perce Tribe and the Confederated Tribes of the Umatilla Indian Reservation participating as amicus curiae.

Along with the motion to intervene, the Yakama Nation has submitted a proposed "Answer and Counterclaim in Intervention." This document characterizes the Yakama Nation as a "defendant intervenor" and purports to assert a counterclaim against the plaintiffs. The counterclaim asserts that the Yakama Nation "is the owner of [the] remains under 3(a)(2)(b) of NAGPRA and is entitled to custody for traditional reburial." The counterclaim further asserts that the plaintiffs "have no rights to examination, study, possession or custody of the human remains in any way," and seeks dismissal of plaintiffs' complaint with prejudice.

The federal defendants contend that the Yakama Nations' participation "would contribute to a full development of the underlying issues," and urge the court to grant the motion to intervene. Though the plaintiffs "neither oppose nor support the motion to intervene," their response to the motion in their July 1, 2000 status report express concern that adding another party might further delay this long-running litigation. Plaintiffs question the appropriateness of the Yakama Nation's proposed answer, given that no claim has been asserted against this proposed intervenor in plaintiffs' complaint. They also oppose the proposed intervenor's assertion of any claim to ownership of the human remains that are the subject of this action "is more properly asserted against the federal defendants than raised as a counterclaim against the plaintiffs."

The Yakama Nation moves to intervene pursuant of Fed. R. Civ. P. 24(a)(2). This Rule provides, in relevant part, that one has a right to intervene

when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action 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 alternative the Yakama Nation moves to intervene under Fed. R. Civ. P. 24(b)(2). This Rule provides for permissive intervention "when an applicant's claim or defense and the main action have a question of law or fact in common."

In order to qualify for "intervention of right," the application to intervene much be timely, the applicant must have a "significantly protectable" interest relating to the transaction that is the subject of the litigation, the applicant must be so situated that the disposition of the action may impair or impede that applicant's ability to protect the interest, and the parties before the court must inadequately represent the applicant's interest. Smith v. Marsh, 194 F. 3d 1045, 1049 (9th Cir. 1999).

Two of the requirements for intervention of right are satisfied here. The Yakama Nation does claim a protectable interest in the subject of this litigation, and is so situated that disposition of the action may impair its ability to protect that interest. However, it has not satisfied the requirements of intervention of right at this late date. This action has been pending for more than 3 1/2 years. Though a stay has limited activity during some of that period, the parties and the court have expended substantial efforts in the litigation to this point, and important progress has been made toward the ultimate resolution of the dispute. Significant dispositive and nondispositive motions have been filed, argued, and decided. I am concerned that the addition of another party at this time would further delay a process that has been less than expeditious, and would be prejudicial to the parties' interest in efficient and timely resolution of this litigation. The Yakama Nation has not provided a satisfactory explanation for the extraordinary delay in moving to intervene, and the motion to intervene simply cannot be characterized as timely.

I also conclude that the Yakama Nation has not established that its interests may not be adequately represented by the federal defendants. See Northwest Forest Resource Council v. Glickman, 82 F.3d 825, 838 (9th Cir. 1996) (prospective intervenor bears burden of demonstrating that existing parties may not adequately represent its interests). Throughout the course of this litigation, defendants have generally taken positions that are consistent with the interests of the various Native American tribes that have claimed custody of the remains, and have consistently advocated positions that are adverse to the plaintiffs. The proposed intervenor cannot establish at this time that the federal defendants may not adequately consider and represent its interests in this litigation. It therefore has not established its right to intervene in this action.

Like motions for intervention of right, motions for permissive intervention must be timely. See San Jose Mercury News v. United States District Court, 187 F.3d 1096, 1100 (9th Cir. 1999). For the reasons noted in the discussion of timeliness above, I conclude that the Yakama Nation's alternative motion for permissive intervention pursuant to Fed. R. Civ. P. 24(b)(2) does not meet this requirement.

Though I am denying its motion to intervene at this time, I recognize that the Yakama Nation has a substantial interest in these proceedings, and would readily grant a motion from it to participate as amicus curiae. Other Native American tribes are participating in that capacity, and the court has fully considered their arguments in earlier proceedings in this action. See Bonnichsen v. United States, 969 F. Supp. 628 (D. Or. 1997).

The Yakama Nation's motion to intervene (#275) is DENIED.

Dated this 2nd day of August, 2000.

(signed) John Jelderks
United States Magistrate Judge

(1) See Bonnichsen v. United States of America, 969 F. Supp. 628 (D. Or. 1997).

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