Cahto Tribe of the Laytonville Rancheria v. Dale Risling et al, No. 2:2010cv01306 - Document 23 (E.D. Cal. 2010)

Court Description: ORDER denying 14 Motion to Intervene signed by Judge Garland E. Burrell, Jr on 11/10/10. (Kaminski, H)
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Cahto Tribe of the Laytonville Rancheria v. Dale Risling et al Doc. 23 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 CAHTO TRIBE OF THE LAYTONVILLE RANCHERIA, 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Plaintiff, v. DALE RISLING, Acting Regional Director for the Pacific Region, Bureau of Indian Affairs, United States Department of the Interior; KEN SALAZAR, Secretary, United States Department of the Interior; LARRY ECHOHAWK, Assistant Secretary- Indian Affairs, United States Department of the Interior, Defendants, GENE WILLIAM SLOAN, BERT U. SLOAN, MELODY SLOAN, JOHN OMAR SLOAN (aka Sidney Poe), TASHEENA SLOAN, ALLEN SLOAN, RACHEL SLOAN, LINDA PALOMARES, GODFREY SLOAN, JEFF SLOAN, TONYA SLOAN RODRIGUEZ, TAMMY SLOAN, ARTURO GONZALEZ, ARICA LOPEZ-SLOAN, MARK BRITTON, Jr., JOSE OCHOA, JENNIFER SLOAN, IntervenorApplicants. ________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) 2:10-cv-01306-GEB-GGH ORDER DENYING MOTION TO INTERVENE 27 28 1 Dockets.Justia.com 1 The Intervenor-Applicants (“Movants”) move to intervene in 2 this action under Federal Rule of Civil Procedure (“Rule”) 24(a)(2) and 3 24(b), arguing “they have an interest in the subject matter of this 4 case, and otherwise qualify as intervenors . . . .” (Mem. of P.&A. in 5 Supp. of Mot. to Intervene (“Mot.”) 2:21-3:1.) Plaintiff Cahto Tribe of 6 the Laytonville Rancheria (“Plaintiff”) opposes the motion, arguing 7 inter alia, Movants seek “to raise . . . issues that were not addressed 8 in 9 adequately represented by the federal Defendants in the case.” (Pl.’s 10 the agency decision under review,” and Movants’ interest “is Opp’n 13:1-3.) 11 I. BACKGROUND 12 This is an action in which judicial review is sought under the 13 Administrative Procedures Act (“APA”) of a March 26, 2009 decision 14 issued by the Regional Director of the Pacific Region, Bureau of Indian 15 Affairs (“BIA”), which directed Plaintiff to re-enroll individuals who 16 had been removed from its roll in the 1990's. (Compl. ¶ 1.) 17 Movants are 17 members of the Sloan family. (Mot. 2:2-4.) Ten 18 of the Movants “are among the [family members] who were purportedly 19 ‘disenrolled’ from the Tribe . . . .” Id. at 2:4-8. “The other seven 20 movants 21 members. . . .” Id. at 2:8-11. are adult children 22 of the purportedly disenrolled tribal II. DISCUSSION 23 A party may intervene as a matter of right under Rule 24(a)(2) 24 when 25 significantly 26 transaction that is the subject of the action;” (3) the movant is 27 “situated such that the disposition of the action may impair or impede 28 [his or her] ability to protect that interest;” and (4) the movant’s 1) they timely move protectable to intervene; interest 2 2) relating the to movant the has “a property or 1 interest is not “adequately represented by existing parties.” Arakaki v. 2 Cayetano, 324 F.3d 1078, 1083 (9th Cir. 2003). The movant must satisfy 3 each of these four elements to intervene as a matter of right. Id.; see 4 also Prete v. Bradbury, 438 F.3d 949, 954 5 (9th Cir. 2006). Rule 24(a) is liberally construed in favor of intervention. 6 Prete 7 well-pleaded, nonconclusory allegations in the motion to intervene, the 8 proposed 9 supporting v. Bradbury, complaint the 438 or motion F.3d at answer as true 954. in “Courts are intervention, absent sham, and to take all declarations frivolity or other 10 objections.” Southwest Center for Biological Diversity v. Berg, 268 F.3d 11 810, 820 (9th Cir. 2001). 12 Movants argue the existing defendants may not adequately 13 represent their interests because “[they] sought for almost ten years to 14 persuade the BIA to address their enrollment appeal.” (Mot. 6:12-13.) 15 Movants further argue “it is far from clear that the agency will 16 adequately represent” them since “the BIA has been contracting with 17 persons claiming to be Cahto tribal officers notwithstanding that those 18 officers’ elections were a product of the unlawful disenfranchisement of 19 the Sloan Family members.” Id. at 6:18-21. 20 Plaintiff counters, Movants’ “interest in defending [the BIA 21 decision] is adequately represented by the federal Defendants in this 22 case” since they “share the same ultimate objective of defending [the 23 Decision].” (Pl.’s Opp’n to Mot. to Intervene (“Opp’n”) 13:1-3, 14:1-3.) 24 Plaintiff also rejoins, although Movants assert the BIA was slow to 25 address their appeal, “they do not, and cannot, establish that the 26 federal Defendants do not presently intend to defend the Regional 27 Director’s March 26, 2009 Decision.” Id. at 14:15-23. 28 3 1 Movants also argue in their reply brief that Defendants do not 2 adequately represent their interests because it is unclear whether they 3 will challenge the court’s subject matter jurisdiction under 28 U.S.C. 4 § 1362. (Movants’ Reply (“Reply”) 10:3-5.) This argument is waived since 5 it was not made in the moving papers. 6 472 F.3d 662, 668 (9th Cir. 2006) (“Issues raised for the first time in 7 an appellant's reply brief are generally deemed waived.”); Zamani v. 8 Carnes, 491 F.3d 990, 997 (9th Cir. 2007) (“The district court need not 9 consider arguments raised for the first time in a reply brief.”) 10 See United States v. Anderson, A number of factors are considered in determining the adequacy 11 of 12 undoubtedly make all of the intervenor's arguments, [2] whether a 13 present party is capable of and willing to make such arguments, and [3] 14 whether the intervenor offers a necessary element to the proceedings 15 that would be neglected.” Prete v. Bradbury, 438 F.3d at 956. “The most 16 important factor in determining the adequacy of representation is how 17 the interest compares with the interests of existing parties.” Arakaki 18 v. Cayetano, 324 F.3d at 1086. representation, 19 including: “[1] whether a present party will A movant’s burden of proof in establishing the inadequacy of 20 representation “is 21 demonstrate[s] that 22 inadequate.” Id. (quotation omitted). However, when a movant and an 23 existing party “have the same ultimate objective, a presumption of 24 adequacy of representation arises . . . .” Prete, 438 F.3d at 956. A 25 further “assumption of adequacy” arises when the existing party with 26 whom the movant shares the same ultimate interest is a government 27 entity, 28 represents. Arakaki, 324 F.3d at 1086. Under such circumstances, “it who is minimal, and [is] representation acting behalf of 4 a of satisfied their if [the interests constituency that the movant] may be movant 1 will be presumed that a state adequately represents its citizens” absent 2 “a very compelling showing to the contrary.” Id. 3 Movants have not made the required “very compelling showing” 4 that the government defendants will not adequately represent them in 5 this case. Movants admit that they share the same ultimate objective 6 with the BIA defendants, i.e. defending the Regional Director’s March 7 26, 2009 Decision. (Reply 2:7-8.) Further, since this is an action under 8 the APA, judicial review is limited to the administrative record, and 9 “the only potential for [inadequate representation] is the risk that the 10 [government defendants] will not vigorously defend [themselves] against 11 Plaintiff’s APA claim.” Seminole Nation of Oklahoma v. Norton, 206 12 F.R.D. 1, 10 (D.D.C. 2001); see also Friends of the Clearwater v. 13 Dombeck, 222 F.3d 552, 560 (9th Cir. 2000) (judicial review under the 14 APA is normally “limited to the administrative record in existence at 15 the time of the agency's decision”). Here, Defendants filed an Answer 16 and participated in the preparation of a Joint Status Report. Thus, 17 there is no indication that they do not intend to defend their March 26, 18 2009 Decision. 19 For the stated reasons, Movants are not entitled to intervene 20 as a matter of right. Therefore, the remaining intervention factors 21 need not be addressed. See Perry v. Proposition 8 Official Proponents, 22 587 F.3d 947, 950 (9th Cir. 2009) (declining to address the remaining 23 Rule 24(a)(2) factors when the movants failed to show a lack of adequate 24 representation by the existing parties). Further, for the same reasons, 25 Movant’s alternative motion for permissive intervention is also denied. 26 See Perry v. Proposition 8 Official Proponents, 587 F.3d at 955 (holding 27 district court properly exercised its discretion in denying permissive 28 5 1 intervention where the movants were adequately represented by existing 2 parties). 3 III. CONCLUSION 4 Therefore, Movants’ Motion to Intervene is DENIED. 5 Dated: November 10, 2010 6 7 8 GARLAND E. BURRELL, JR. United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6