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
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
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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