Court Opinion on Polynesian Motion to Intervene
Bonnichsen, et al Plaintiffs
Opinion and Order
Jelderks, Magistrate Judge:
The pro se motion asserts that Faumuina "is a direct descendant of Tui Manu'a, the first rulers of ancient Polynesia." As explained more fully in his proposed Complaint of Intervention, Faumuina contends that, thousands of years ago, people from what is now Norway traveled through Asia and into the Americas, populating the Pacific Northwest including what is now Oregon, Washington, and Alaska. According to Faumuina, some of those people (or their offspring) continued on to establish settlements in Peru. Later, some sailed west across the Pacific and became the first occupants of Polynesia, including what is presently American Samoa. (1) Faumuina contends he is a descendant of those people that populated Polynesia, that the man whose remains are at the center of this case was part of the ancestral group that settled in or passed through Washington, and that man is therefore Faumuina's distant ancestor. Faumuina seeks to intervene in these proceedings to assert his right to the remains, which he contends is superior to that of the existing parties in this case.
All of the current parties oppose the motion to intervene as untimely. The federal defendants have also stated additional reasons for their opposition.
FRCP 24(a) provides, in relevant part, that:
A person seeking to intervene must satisfy all requirements of the rule, i.e., that the application is timely, the person claims an interest that may be impaired, and the person's interest is not adequately represented by existing parties. Smith v Marsh, 194 F3d 1045, 1049 (9th Cir 1999).
The threshold question is whether the application to intervene is "timely." In determining whether a motion for intervention is timely, the court must consider (1) the stage of the proceeding at which an applicant seeks to intervene, (2) the prejudice to other parties, and (3) the reason for and length of the delay. Smith, 194 F3d at 1050.
The proposed Complaint in Intervention recites "that the intervention is timely in that the final custody and disposition of the remains of the Kennewick Man have not been determined." However, the mere fact that a final judgment has not yet been entered does not establish that an application to intervene is timely. See Smith, 194 F3d at 10488-53. The court must consider the specific circumstances of each case.
This action was commenced in October 1996. The motion to intervene was filed July 23, 2001. This case has been vigorously litigated, in this court and in administrative proceedings, for almost five years. This court previously denied, as untimely, the Yakama Nation's application to intervene filed in May 2000. Since that date, the administrative proceedings were finalized, and the agency's final decision (on reconsideration) was announced. Plaintiffs' challenge to the agency's decision was extensively briefed, the court heard two days of oral argument, and the matter was taken under advisement by the court.
Intervention so late in this cas would be extremely burdensome, both to the court and to the existing parties. Faumuina seeks to inject new factual and legal theories that would require supplemental briefing and argument. In addition, because the agency's decision must be based on the administrative record -- but Faumuina apparently did not participate in those proceedings -- the agency would likely have to reopen its proceedings, compile a supplemental record and make a new decision. The parties would then have to rebrief and reargue this case. Granting Faumuina's application to intervene would likely result in several years of additional administrative and judicial proceedings, at considerable expense to the parties.
Faumuina's motion to intervene does not explain why he waited almost five years before moving to intervene. From the start, this case has been covered extensively by the media; it seems unlikely that a person interested in this issue would be unaware of the pending litigation. Faumuina obviously has such an interest, having co-authored a book explaining his theories. Faumuina has not pointed to any factual or procedural developments that so dramatically alter the posture of this case as to justify a belated motion to intervene. I find that the application to intervene is untimely, that Faumuina has not demonstrated adequate justification for th edelay and that the existing parties would be greatly prejudiced if the application were granted.
Turning to the other factors, Faumuina claims an interest, albeit somewhat remote. Absent proof of direct lineal descent -- which, without DNA evidence, seems impossible to prove in this case -- Faumuina's interest appears to be one shared by other persons of similar ancestry. In fact, the proposed Complaint implicitly acknowledges this by asserting not only "direct standing" but also "third-party standing" to assert the "rights of the elect of the Faleula (traditional body of presiding chiefs of the Sacred Island of Manu'a)." (2)
Neither Faumuina nor the Faleula has presented a claim for the remains to the federal defendants, or otherwise formally asserted a right to these remains until now. The legal foundation for this claim to the remains is unclear. The proposed Complaint mentions "the Due Process and Equal Protection mandates of the Fifth Amendments (sic) of the United States Constitution, and the Treaty between the United States and Manu'a entered and executed in 1904."
The federal defendants also argue that Faumuina's interest and views are adequately represented by the existing parties. That is doubtful, since Faumuina advocates a different result than any of the existing parties. However it is not enough to overcome the other deficiencies discussed above.
Dated this 22 day of August, 2001
(1) The theory that some Pacific islands were populated by sailing west from South America has been advocated by others. Thor Heyderdahl's efforts to prove that theory were the subject of the book (and movie) Kon-Tiki.
(2) To the extent Faumuina is asserting third-party standing, he has failed to explain why the third party is incapable of asserting its own rights, or
why he should be permitted to represent those rights.
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