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United States v. Washington

filed: June 12, 1996.

UNITED STATES OF AMERICA, ET AL.; MUCKLESHOOT TRIBE; NOOKSACK; UPPER SKAGIT; SQUAXIN ISLAND; LUMMI INDIAN TRIBE; MAKAH TRIBE; SWINOMISH INDIAN TRIBAL COMMUNITY; TULALIP TRIBE; PUYALLUP TRIBE; QUILEUTE INDIAN TRIBE; SUQUAMISH TRIBE; HOH INDIAN TRIBE; QUINAULT INDIAN NATION; CONFEDERATED TRIBES & BANDS OF THE YAKIMA INDIAN NATION; NISQUALLY INDIAN TRIBE; PLAINTIFFS-APPELLEES,
v.
STATE OF WASHINGTON, ET AL., DEFENDANTS, AND WASHINGTON HARVEST DIVERS ASSOCIATION; TOM MCMAHON, INTERVENORS-APPELLANTS. UNITED STATES OF AMERICA, ET AL.; MUCKLESHOOT TRIBE; NOOKSACK; UPPER SKAGIT; SQUAXIN ISLAND; LUMMI INDIAN TRIBE; MAKAH TRIBE; SWINOMISH INDIAN TRIBAL COMMUNITY; TULALIP TRIBE; PUYALLUP TRIBE; QUILEUTE INDIAN TRIBE; HOH INDIAN TRIBE; SUQUAMISH TRIBE; QUINAULT INDIAN NATION; CONFEDERATED TRIBES & BANDS OF THE YAKIMA INDIAN NATION; NISQUALLY INDIAN TRIBE; PLAINTIFFS-APPELLEES, V. STATE OF WASHINGTON, ET AL., DEFENDANTS, AND INNER SOUND CRAB ASSOCIATION; EDWARD KNUDSON; WASHINGTON DUNGENESS CRAB FISHERMEN'S ASSOCIATION; ERNEST SUMMERS, INTERVENORS-APPELLANTS.



Appeals from the United States District Court for the Western District of Washington. D.C. No. CV-89-00003-ER. D.C. No. CV-89-00003-ER. Edward J. Rafeedie, District Judge, Presiding.

Before: Robert Boochever, Ferdinand F. Fernandez, and Andrew J. Kleinfeld, Circuit Judges. Opinion by Judge Boochever; Dissent by Judge Kleinfeld.

Author: Boochever

BOOCHEVER, Circuit Judge:

Three commercial fishing associations appeal the district court's order denying intervention in an action brought by the United States, as trustee for various Indian tribes, against the State of Washington. The United States and the tribes claimed fishing rights to shellfish. We affirm the district court's ruling that the motions to intervene were untimely.

FACTS

In 1970, the United States, on its own behalf and as trustee for various Washington State (or "State") Indian tribes, brought an action against the State to enforce fishing rights reserved by the tribes in a series of treaties signed in the 1850s and negotiated by Isaac Stevens, the first Governor and first Superintendent of Indian Affairs of the Washington Territory (the "Stevens treaties"). See Washington v. Washington State Comm'l Passenger Fishing Vessel Ass'n, 443 U.S. 658, 666-69, 674-679, 61 L. Ed. 2d 823, 99 S. Ct. 3055, modified, 444 U.S. 816, 62 L. Ed. 2d 24, 100 S. Ct. 34 (1979) (" Passenger Fishing Vessel "). The district court eventually granted the tribes off-reservation fishing rights for salmon and steelhead, allowing state regulation of those rights for conservation purposes only. United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974), aff'd, 520 F.2d 676 (9th Cir. 1975), cert. denied, 423 U.S. 1086, 47 L. Ed. 2d 97, 96 S. Ct. 877 (1976). Those Indian tribes fishing under treaty rights could take up to fifty percent of the harvestable fish. Id. at 343. The district court retained continuing jurisdiction over unresolved treaty issues, authorizing the parties to file a "Request for Determination" of any issue concerning the subject matter of the case. Id. at 347. This court and the Supreme Court affirmed in substantial part. United States v. Washington, 520 F.2d 676 (9th Cir. 1975), cert. denied, 423 U.S. 1086, 47 L. Ed. 2d 97, 96 S. Ct. 877 (1976); Passenger Fishing Vessel, 443 U.S. 658, 61 L. Ed. 2d 823, 99 S. Ct. 3055.

Almost twenty years after the filing of the initial litigation, in 1989 the United States and sixteen Indian tribes ("Tribes") began a "subproceeding" by filing a Request for Determination and Declaratory and Injunctive Relief, seeking a declaration that their treaty right to take off-reservation fish extended to all species of shellfish found within their traditional fishing grounds. The State filed a response denying the Tribes' right to shellfish. The district court allowed intervention by several commercial shellfish growers and two private waterfront owners.

In September 1991, the Inner Sound Crab Association ("Inner Sound"), a group of non-Indian commercial dungeness crab fishers in Puget Sound, moved to intervene, arguing that the State would not vigorously defend Inner Sound's interests. At a pretrial conference on January 27, 1993, the district court denied the motion, instead giving Inner Sound amicus status and a right to receive and comment on all filings in the case. Inner Sound did not appeal.

In September 1993, the district court granted partial summary judgment for the Tribes, ruling that the treaty right to take "fish" includes the right to take shellfish. In January 1994, the court denied a motion for summary judgment by the State of Washington, ruling that the right to take shellfish included the right to harvest shellfish within a tribe's usual and accustomed fishing areas at any depth. After trial, the district court issued a memorandum opinion in December 1994 reaffirming its rulings that shellfish were fish, and that the Tribes could harvest in deep water. The decision divided the shellfish equally between treaty and non-treaty harvesters, and invited the parties to negotiate an implementation plan. United States v. Washington, 873 F. Supp. 1422, 1430-31, 1445-46 (W.D. Wash. 1994). The decision deferred the issue of injunctive relief or any plan of implementation until the court received input from the parties. Id. at 1450.

Three months after the memorandum opinion, in March 1995, the Washington Harvest Divers Association ("Harvest Divers"), an association of commercial harvesters of sea urchins and sea cucumbers (both considered shellfish), moved to intervene. Also, Inner Sound again moved to intervene, this time by a joint motion with the Washington Dungeness Crab Fisherman's Association ("Dungeness Crab"), an association of active commercial dungeness crab fishers off the coast of Washington. In April 1995, the district court denied both motions and denied amicus status to the applicants for intervention.

On August 25, 1995, the district court entered an order directing the entry of final judgment consistent with the December 20, 1994, memorandum decision.

The three commercial fishers associations (collectively the "Associations") appeal the denial of their motions to intervene.

Discussion

I. Motions to intervene as of right

This court reviews de novo the denial of a motion to intervene as of right. Sierra Club v. EPA, 995 F.2d 1478, 1481 (9th Cir. 1993). The district court's determination of one part of the test for intervention, timeliness, is reviewed for an abuse of discretion. Id. ; Yniguez v. Arizona, 939 F.2d 727, 730-31 (9th Cir. 1991).

Rule 24 of the Federal Rules of Civil Procedure provides:

Upon timely application anyone shall be permitted to intervene in an action . . . 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.

Fed. R. Civ. P. 24(a)(2). The district court must grant the motion to intervene if four criteria are met: timeliness, an interest relating to the subject of the litigation, practical impairment of an interest of the party seeking intervention if intervention is not granted, and inadequate representation by the parties to the action. Greene v. United States, 996 F.2d 973, 976 (9th Cir. 1993). Rule 24(a) is construed broadly in favor of intervention. Id.

Because the Associations do not all make the same arguments regarding their motions to intervene, we address each Association separately.

A. Harvest Divers

This court evaluates three factors to determine whether a motion to intervene is timely: "(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." United States ex rel. McGough v. Covington Technologies Co., 967 F.2d 1391, 1394 (9th Cir. 1992) (quotations omitted). Delay is measured from the date the proposed intervenor should have been aware that its interests would no longer be protected adequately by the parties, not the date it learned of the litigation. Officers for Justice v. Civil Serv. Comm'n of San Francisco, 934 F.2d 1092, 1095 (9th Cir. 1991). Although the length of the delay is not determinative, any substantial lapse of time weighs heavily against intervention. Id. If the court finds that the motion to intervene was not timely, it need not reach any of the remaining elements of Rule 24. United States v. Oregon, 913 F.2d 576, 588 (9th Cir. 1990), cert. denied, 501 U.S. 1250, 115 L. Ed. 2d 1054, 111 S. Ct. 2889 (1991).

In April 1995, the district court found that the motions were untimely, stating:

Here, the proceeding is at a stage of final implementation. The impact to the movants has been foreseeable since at least 1989, when this sub-proceeding was filed. The proceeding has advanced to a late stage, a stage too late for intervention. In addition, the other parties would be prejudiced by the intervention of these groups. Permitting the movants to enter this litigation would unnecessarily prolong and complicate resolution of the issues at stake. Indeed, the movants really appear to have their own agenda, namely they contest the way that the state manages the NON-tribal 50% [of shellfish], and, in the case of [the parties on appeal], they contest the Indians having a share at all. Therefore, the groups seek redress of an issue not before the Court, and they additionally seek to relitigate an issue that the Court already ...


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