California Valley Miwok Tribe v. Salazar

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_______________________________
)
CALIFORNIA VALLEY MIWOK TRIBE, )
et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 11-160 (RWR)
)
KEN SALAZAR, et al., )
)
Defendants. )
_______________________________ )
MEMORANDUM OPINION AND ORDER
This matter is a dispute over the U.S. Department of the
Interior’s determination of the legitimate government and
membership of the California Valley Miwok Tribe (“Tribe”), a
federally recognized Indian tribe. Defendants are Secretary of
the Interior Ken Salazar, Assistant Secretary for Indian Affairs
Larry Echo Hawk, and Director of the Bureau of Indian Affairs
Michael Black. Plaintiffs Yakima Dixie, Velma WhiteBear, Antonia
Lopez, Michael Mendibles, Evelyn Wilson, and Antoine Azevedo
bring suit individually and on behalf of the Tribe and its Tribal
Council, arguing that the defendants’ decision to recognize a
General Council led by Sylvia Burley as the legitimate government
of the Tribe, and to discontinue efforts to adjudicate the status
of other putative tribal members, constituted arbitrary and
capricious agency action, in violation of the Administrative
Procedure Act (“APA”), 5 U.S.C. § 706(2)(A), and also violated
due process and the Indian Civil Rights Act (“ICRA”), 25 U.S.C.
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§ 1301, et seq. Another group representing the Tribe, as
organized in the form of the General Council, moves to intervene
as a defendant in this action for the limited purpose of filing a
motion to dismiss, arguing that intervention is necessary to
protect its fundamental interests in defending its sovereignty
and defining its citizenship.1 Because the proposed intervenor
satisfies the requirements for intervention as of right under
Federal Rule of Civil Procedure 24(a)(2), the motion to intervene
will be granted.2
BACKGROUND
The leadership and membership of the California Valley Miwok
Tribe have been in dispute for over a decade. The Federally
Recognized Indian Tribe List Act of 1994, Pub. L. 103-454,
included the California Valley Miwok Tribe as a federally
recognized tribe. In 1998, the Department of the Interior’s
Bureau of Indian Affairs (“Bureau”) initiated efforts to
facilitate reorganizing the Tribe under the Indian Reorganization
Act of 1934 (“IRA”), 25 U.S.C. §§ 461-479. A tribe whose
government is organized according to the IRA’s procedural and
substantive requirements qualifies for certain federal benefits
1
Both the plaintiffs and the proposed intervenor use the
name “California Valley Miwok Tribe.” To avoid confusion, the
terms “plaintiffs” and “proposed intervenor” will be used when
discussing the respective parties’ positions here.
2
In light of the decision to grant the motion under Rule
24(a)(2), the parties’ arguments regarding permissive
intervention will not be addressed.
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and may maintain government-to-government relations with the
United States and with state and local governments. The Bureau
identified plaintiff Yakima Dixie, then serving as tribal
chairperson, Sylvia Burley, the present leader of the proposed
intervenor, along with several others, as members of the Tribe
who were able to participate in the reorganization (First Am.
Compl., Ex. A., August 31, 2011 letter from Assistant Secretary
of Indian Affairs (“August 31 decision”) at 4). See also
California Valley Miwok Tribe v. United States, 424 F. Supp. 2d
197, 198 (D.D.C. 2006) (“CVMT I”) (reviewing Tribe’s
reorganization process). The Bureau recommended that the Tribe
establish a general council form of government for the
organization process. (August 31 decision at 4.) Following this
recommendation, the Tribe established the General Council by
resolution in 1998 and began to develop a draft constitution.
(Id.) Plaintiffs dispute the validity of the resolution,
alleging that it did not receive the approval of the required
number of members. (First Am. Compl. ¶¶ 43-47.)
Soon afterwards, leadership disputes between Dixie and
Burley developed within the Tribe. (August 31 decision at 4;
First Am. Compl. ¶¶ 48-50.) In 2004, the Bureau declined to
approve a constitution submitted by Burley because she had not
involved the “whole tribal community” in the organizational
process. (August 31 decision at 4; First Am. Compl. ¶¶ 51-53.)
It also issued a communication stating that it did not view the
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Tribe as “organized” under the IRA and that it did not recognize
anyone as chairperson, though it recognized Burley as a “person
of authority” within the Tribe. (See August 31 decision at 4;
First Am. Compl. ¶¶ 54-56.) See also CVMT I, 424 F. Supp. 2d at
200 (D.D.C. 2006). In 2005, Burley and her supporters brought
the CVMT I suit in the name of the Tribe challenging the
Secretary of the Interior’s refusal to approve the constitution.
(See August 31 decision at 4; First Am. Compl. ¶ 58.) The D.C.
Circuit upheld the district court’s finding that the Secretary
had the authority to decline to approve the constitution on the
grounds that it did not enjoy support from the majority of the
tribe’s membership. California Valley Miwok Tribe v. United
States, 515 F.3d 1262, 1263 (D.C. Cir. 2008). During the period
of disputed leadership, Dixie and other members of a tribal
council endeavored to identify and organize potential members of
the tribe. (First Am. Compl. ¶¶ 65-70.) The Bureau assisted by
publishing a notice seeking genealogies and other information
from potential Tribal members, among other efforts to identify
individuals entitled to participate in the reorganization
process. (First Am. Compl. ¶¶ 71-74.) Burley and her supporters
did not participate in these activities but challenged the
reorganization process through administrative appeals within the
Bureau. (First Am. Compl. ¶¶ 75-77.)
On December 22, 2010, the Assistant Secretary for Indian
Affairs issued a decision, addressing Burley’s appeals, in which
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it concluded that the Tribe was organized as the General Council
under the resolution adopted in 1998 and that the Bureau would
cease efforts to facilitate reorganization. (Compl., Ex. C,
December 22, 2010 letter from Assistant Secretary of Indian
Affairs.) The plaintiffs then initiated this action challenging
the legality of the decision. In April of 2011, the Assistant
Secretary granted reconsideration and sought briefing from Dixie,
Burley, and their respective supporters. (August 31 decision at
1.) The Assistant Secretary reinstated his prior decision on
August 31, 2011, but stayed its effectiveness pending resolution
of this litigation. (Id. at 8.) The Assistant Secretary
represented that at present, the recognized citizenship of the
Tribe consists of Dixie, Burley, Rashel Reznor, Anjelica Paulk,
and Tristian Wallace.3
The first amended complaint alleges that the Assistant
Secretary presented no reasoned explanation for the Bureau’s
reversal of its previous positions that the Tribe was not yet
organized in accordance with the IRA and in support of
identifying additional tribal members to participate in
reorganization. The plaintiffs therefore allege that the
decision was arbitrary and capricious under the APA, as well as a
violation of due process and ICRA. (First Am. Compl. ¶¶ 90-119.)
3
According to the plaintiffs, “Reznor, Paulk, and Wallace
are Burley’s daughters and granddaughter, respectively.” (First
Am. Compl. at 21 n.1.)
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The plaintiffs allege that they have been harmed by the Assistant
Secretary’s action because they have been denied the opportunity
to participate in reorganization and governance of the Tribe;
they are not and will not be eligible to receive federal health,
education and other benefits provided to members of recognized
Indian Tribes; and the decision could provide a basis for Burley
to divert funds held in trust for the Tribe by the State of
California and paid by the California Gambling Control Commission
to tribes that do not operate casinos or gaming devices, and to
divert federal grant funds. (First Am. Compl. ¶¶ 82-89.) The
plaintiffs seek declaratory and injunctive relief including an
order vacating the August 31 decision and directing the Assistant
Secretary “to establish government-to-government relations only
with a Tribal government that reflects the entire Tribal
community, including individual Plaintiffs and all other Current
Members.” (First Am. Compl. at 30.) The plaintiffs also seek an
order enjoining the defendants from awarding any federal funds to
Burley. (Id.) The defendants have answered the amended
complaint.
The proposed intervenor moved to intervene as a defendant
in the action for the limited purpose of filing a motion to
dismiss for lack of subject matter jurisdiction, for failure to
join an indispensable party, and for failure to state a claim.4
4
The proposed intervenor’s first motion to intervene was
fully briefed before the Assistant Secretary granted
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The proposed intervenor argues that intervention as of right is
warranted because the complaint “involves an attempt to forcibly
expand the Tribe’s citizen[ship] and alter its relationship with
the United States, directly implicating the Tribe’s sovereign
responsibility to determine its own citizenship and resolve its
own internal affairs.” (Proposed Intervenor-Defendant’s Am. Mot.
for Leave to Intervene as Defendant (“Mot. to Intervene”) at 3.)
The plaintiffs oppose on the grounds that the proposed intervenor
fails to demonstrate that its interests are not protected
adequately by the federal defendants. (Pls.’ Opp’n to Mot. to
Intervene (“Pls.’ Opp’n”) at 3-4.) The federal defendants take
no position on the motion to intervene. (Mot. to Intervene at 3
n.2.)
DISCUSSION
Intervention as a matter of right should be granted when the
movant “claims an interest relating to the property or
transaction that is the subject of the action, and is so situated
that disposing of the action may as a practical matter impair or
impede the movant’s ability to protect its interest, unless
reconsideration of his December 22, 2010 decision. Following
reinstatement of that decision, the proposed intervenor filed an
amended motion to intervene. This opinion cites to the second
round of briefing on intervention. In the amended motion to
intervene, the proposed intervenor presents a lengthy recitation
of the factual background, as well as arguments going to the
merits of the motion to dismiss it intends to file. Because it
is not necessary to the resolution of the motion to intervene,
these arguments are not addressed.
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existing parties adequately represent that interest.” Fed. R.
Civ. P. 24(a)(2). Evaluating Rule 24(a)(2), the D.C. Circuit has
“identified four prerequisites to intervene as of right: ‘(1) the
application to intervene must be timely; (2) the applicant must
demonstrate a legally protected interest in the action; (3) the
action must threaten to impair that interest; and (4) no party to
the action can be an adequate representative of the applicant’s
interests.’” Karsner v. Lothian, 532 F.3d 876, 885 (D.C. Cir.
2008) (quoting SEC v. Prudential Sec. Inc., 136 F.3d 153, 156
(D.C. Cir. 1998)). Importantly, “a party seeking to intervene as
of right must demonstrate that it has standing under Article III
of the Constitution.” Fund For Animals, Inc. v. Norton, 322 F.3d
728, 731-32 (D.C. Cir. 2003); see Defenders of Wildlife v.
Jackson, Civil Action No. 10-1915 (RWR), 2012 WL 896141, at *4
(D.D.C. March 18, 2012) (discussing view that Article III
standing and Rule 24(a)(2) interest requirements are additive,
and view that any party who satisfies Rule 24(a) will also meet
Article III’s standing requirement).
I. STANDING
The plaintiffs do not contest the proposed intervenor’s
standing to intervene. However, this threshold issue will be
addressed since a party’s Article III standing is a prerequisite
to subject matter jurisdiction. See Fund For Animals, Inc., 322
F.3d at 732. “To establish standing under Article III, a
prospective intervenor –- like any party -- must show: (1)
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injury-in-fact, (2) causation, and (3) redressability.” Id. at
732-33. The proposed intervenor easily meets these requirements.
If the plaintiffs prevail in this action, the Assistant
Secretary’s August 31 decision will be vacated, the Bureau will
be ordered to cease government-to-government relationships with
the Tribe as organized in the form of the General Council, and
the defendants will be enjoined from awarding any federal funds
to Burley. These actions are concrete and particularized
injuries to the proposed intervenor’s financial resources and
governmental integrity. The causation prong is satisfied because
the threatened loss of sovereignty and funds is fairly traceable
to the agency action that the plaintiffs seek to compel in the
instant action. Finally, a decision in the proposed intervenor’s
favor would leave the August 31 decision undisturbed and thereby
prevent the injuries from occurring, satisfying the
redressability prong.
II. RULE 24(a)(2) REQUIREMENTS
The proposed intervenor also meets each of the four
requirements for intervention as a matter of right. First, the
proposed intervenor’s motion was timely, as it was initially
filed “less than two months after the plaintiffs filed their
complaint and before the defendants filed an answer.” Fund For
Animals, Inc., 322 F.3d at 735. Second, the proposed intervenor
has shown a legally protected interest in the matter since, in
this Circuit, “satisfying constitutional standing requirements
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demonstrates the existence of a legally protected interest.”
Jones v. Prince George’s County, 348 F.3d 1014, 1019 (D.C. Cir.
2003) (citing Mova Pharm. Corp. v. Shalala, 140 F.3d 1060, 1076
(D.C. Cir. 1998)). Third, plaintiffs’ action “threaten[s] to
impair,” Karsner, 532 F.3d at 885, the proposed intervenor’s
legally protected interest because resolution of the matter in
the plaintiffs’ favor would directly interfere with the
governance of the Tribe as currently recognized and preclude
access to federal funds. The plaintiffs appear to concede that
the above three requirements are met as they presented no
arguments on these points in their opposition.
The basis of the plaintiffs’ opposition to intervention
concerns the fourth requirement, the adequacy of existing
parties’ representation of the proposed intervenor’s interests.
The proposed intervenor argues that the federal defendants do not
adequately represent its interests since the federal defendants
may make different arguments from those of the proposed
intervenor, the proposed intervenor’s stake in the litigation
differs from that of the defendants, the defendants may not
choose to appeal an adverse judgment, and the proposed intervenor
will provide necessary information to the proceedings that the
defendants might neglect. (Stmt. of P. & A. in Supp. of Proposed
Intervenor-Defendant’s Mot. to Intervene (“Proposed Intervenor’s
Stmt.”) at 22-23.) The plaintiffs counter that the federal
defendants adequately represent the proposed-intervenor’s
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interests because both seek the same “ultimate objective,” that
is, upholding the August 2011 Decision. (Pls.’ Opp’n at 3.)
The D.C. Circuit has emphasized repeatedly that the standard
to demonstrate inadequacy of representation is lenient. See Fund
For Animals, Inc., 322 F.3d at 736 n.7 (concluding that Supreme
Court precedent “makes clear that the standard for measuring
inadequacy of representation is low”); Dimond v. District of
Columbia, 792 F.2d 179, 192 (D.C. Cir. 1986) (describing burden
as “not onerous”); United States v. American Tel. & Tel. Co., 642
F.2d 1285, 1293 (D.C. Cir. 1980) (recognizing view that a movant
“ordinarily should be allowed to intervene unless it is clear
that the party will provide adequate representation for the
absentee”) (internal quotations omitted). In addition, the
Circuit has expressed skepticism that United States governmental
entities, with their unique obligations to the serve general
public, can be found to adequately represent the interests of
potential intervenors. See Fund For Animals, Inc., 322 F.3d at736 & n.9 (collecting cases).
That skepticism is warranted here. The federal defendants’
interest in this action is to defend the Assistant Secretary’s
decision as lawful agency action. By contrast, the proposed
intervenor possesses a distinct and weighty interest in
protecting its governance structure and its entitlement and
access to federal grant monies. Because the federal defendants
do not share these concerns, their defense of this action may not
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adequately represent the proposed intervenor’s interests. See
Hardin v. Jackson, 600 F. Supp. 2d 13, 16 (D.D.C. 2009) (“The
D.C. Circuit has frequently found ‘inadequacy of governmental
representation’ when the government has no financial stake in the
outcome of the suit.”) (quoting Dimond, 792 F.2d at 192).5
The purpose for which the proposed intervenor seeks to
participate in the case reflects the proposed intervenor’s
distinct aim of asserting its sovereign interests. The federal
defendants, and the plaintiffs, anticipate that the case may be
resolved on cross-motions for summary judgment and the
administrative record. (See Joint Mot. for Briefing Schedule.)
The proposed intervenor, however, seeks intervention for the
limited purpose of moving to dismiss on several grounds,
including lack of jurisdiction to adjudicate internal tribal
disputes and failure to state a claim, a tactic the federal
5
Plaintiffs propose a different standard employed in the
Ninth Circuit according to which “[w]here the party and the
proposed intervenor share the same ultimate objective, a
presumption of adequacy of representation applies, and the
intervenor can rebut that presumption only with a compelling
showing to the contrary.” Perry v. Proposition 8 Official
Proponents, 587 F.3d 947, 951 (9th Cir. 2009) (internal
quotations omitted). The D.C. Circuit has not endorsed this
articulation of the intervention standard, and cases in the
Circuit have been “inconsistent as to who bears the burden with
respect to [the adequacy of representation] factor.” Fund For
Animals, Inc., 322 F.3d at 736 n.7. Although both defendants and
the proposed intervenor oppose invalidating the August 31
decision, they do so for different reasons and their respective
stakes in the matter differ greatly. The standard for finding
inadequate representation here is satisfied regardless of who
bears the burden.
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defendants have not pursued. See Proposed Intervenor-Defendant’s
Reply to Pls.’ Opp’n (“Proposed Intervenor-Defendant’s Reply”) at
7 (asserting that defendants’ representation is demonstrably not
adequate because “[s]trong grounds exist for dismissal of
Plaintiffs’ Amended Complaint on Rule 12(b)(1) and Rule 12(b)(6)
grounds, but the United States failed to seek such a dismissal”).
The plaintiffs argue that the choice of a “different procedural
mechanism for seeking judicial affirmance of the agency decision
does not mean that the government is not adequately representing
the prospective intervenor’s interests.” (Pls.’ Opp’n at 4.)
A difference in litigation strategies does not always
demonstrate an insufficiently coterminous relationship between a
potential intervenor and an existing party. Here, however, the
divergence highlights that the proposed intervenor’s
conceptualization of the action, as an internal tribal dispute
not amenable to resolution in a federal judicial forum, is not
shared by the defendants. In an important regard, then, the
proposed-intervenor does not seek “judicial affirmance” that the
agency decision was not arbitrary and capricious or otherwise
unlawful; it seeks to persuade “this Court to refrain from
presiding over a procedurally defective Amended Complaint and
rendering a ruling on the merits in an action over which it lacks
jurisdiction.” (Proposed Intervenor-Defendant’s Reply at 3.) For
the foregoing reasons, the defendants do not adequately represent
the proposed intervenor’s interest in protecting its current
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governmental structure and its ability to define its membership
independently.
CONCLUSION AND ORDER
Because all four requirements of Rule 24(a)(2) are met, the
proposed intervenor is entitled to intervention as of right. The
plaintiffs ask that, if intervention is granted, the filing of
the motion to dismiss be coordinated with the briefing and
resolution of the parties’ cross motions for summary judgment.
(Pls.’ Opp’n at 5.) Accordingly, it is hereby
ORDERED that the proposed intervenor-defendant’s amended
motion [35] for leave to intervene as defendant be, and hereby
is, GRANTED. The Clerk’s Office is directed to docket Exhibits 3
through 7 to the proposed intervenor-defendant’s amended motion
for leave to intervene as the intervenor-defendant’s motion to
dismiss the plaintiffs’ first amended complaint. It is further
ORDERED that the proposed intervenor-defendant’s motion [36]
to expedite consideration of its motion for leave to intervene
be, and hereby is, GRANTED. It is further
ORDERED that the parties’ joint motion [41] to extend time
for plaintiffs to request supplementation of the administrative
record be, and hereby is, GRANTED nunc pro tunc. It is further
ORDERED that the parties’ amended joint motion for briefing
schedule [47] for cross motions for summary judgment be, and
hereby is, GRANTED nunc pro tunc, and the parties’ joint motion
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[38] for briefing schedule for cross motions for summary judgment
be, and hereby is, DENIED as moot. It is further
ORDERED that the parties and the intervenor shall meet and
confer and file by April 4, 2012 a joint status report and
proposed order reflecting deadlines for opposing and replying in
support of the intervenor’s motion to dismiss and proposing any
necessary amendments to the briefing schedule for cross motions
for summary judgment.
SIGNED this 26th day of March, 2012.
/s/
RICHARD W. ROBERTS
United States District Judge