UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
THE CAYUGA NATION, et al., Plaintiffs, v. RYAN ZINKE, et al., Civil Action No. 17-cv-1923 (CKK) Defendants,
THE CAYUGA NATION COUNCIL, Defendant-Intervenor.
MEMORANDUM OPINION (February 23, 2018)
The Cayuga Nation is a federally recognized Indian Nation. This case deals with
decisions by the Bureau of Indian Affairs (“BIA”) and the Assistant Secretary for Indian Affairs
of the Department of the Interior that recognized one faction within the Cayuga Nation—now
referring to itself as the “Cayuga Nation Council”—as the governing body of the Cayuga Nation
for the purposes of certain contractual relationships between that Nation and the United States
federal government. These decisions were apparently the product of an adversarial process
between the Cayuga Nation Council and Plaintiffs, a rival faction within the Cayuga Nation who
assert that they represent the Nation’s rightful government. Plaintiffs have filed this lawsuit
seeking to overturn the decisions.
Presently before the Court is the [17] Motion of the Cayuga Nation Council to Intervene.
Putative Intervenor Cayuga Nation Council (“Putative Intervenor”) seeks to intervene in this case
to defend the government’s decisions recognizing it, as opposed to Plaintiffs, as the governing
body of the Cayuga Nation. Current Defendants (effectively, the federal government) do not oppose the Putative Intervenor’s Motion, but Plaintiffs do. Upon consideration of the pleadings, 1
the relevant legal authorities, and the record as a whole, the Court finds that the Putative
Intervenor has standing and is entitled to intervene in this case as a matter of right under Federal
Rule of Civil Procedure 24(a). Accordingly, the Court shall GRANT its Motion to Intervene.
I. BACKGROUND
The Cayuga Nation is a sovereign, federally recognized Indian Nation. Compl., ¶ 1.
Plaintiffs allege that the Cayuga Nation has long been governed by a Council of Chiefs selected
and overseen by “Clan Mothers,” who Plaintiffs purport to represent in this litigation. Id. ¶¶ 1-2.
Plaintiffs assert that “Cayuga Nation leaders are selected pursuant to the Great Law of Peace,
which gives that responsibility of nomination and removal to the women who serve as Clan
Mothers, based on input from the members of their clans.” Id. ¶ 31. According to Plaintiffs, this
is a “deliberative and consensus-based” process for selecting leaders. Id. ¶ 33. Plaintiffs allege
that the United States federal government had previously recognized this form of governance for
the Cayuga Nation, and rejected efforts over the years by a faction known as the “Halftown
Group” to secure support for the use of a mail-in survey to reconfigure the Cayuga Nation’s
government. Id. ¶¶ 34-36.
However, in June 2016 Defendant Bruce W. Maytubby, the Eastern Regional Director of
the BIA, revealed to Plaintiffs that the Halftown Group intended to conduct a mail-in survey in
1 The Court’s consideration has focused on the following documents: • Points and Authorities in Support of Mot. of the Cayuga Nation Council to Intervene, ECF No. 17 (“Put. Int.’s Mot.”); • Pls.’ Mem. in Opp’n to Mot. of the Cayuga Nation Council to Intervene (“Pls.’ Opp’n”), ECF No. 20; and • Reply to Pls.’ Opp’n to Mot. of the Cayuga Nation Council to Intervene (“Put. Int.’s Reply”), ECF No. 24. In an exercise of its discretion, the Court finds that holding oral argument in this action would not be of assistance in rendering a decision. See LCvR 7(f).
2 order to create a new government for the Cayuga Nation, and that it was Mr. Maytubby’s view
that the proposed survey “would be a viable way of involving the Cayuga people in a
determination of the form and membership of their government.” Id. ¶¶ 37, 40. Plaintiffs
contend that this determination was the result of secret meetings between the BIA and the
Halftown Group, which Plaintiffs were excluded from. Id. ¶ 38. Plaintiffs objected to the
proposed survey, arguing that, among other things, it violated Cayuga law. Id. ¶ 42.
On December 15, 2016, Defendant Maytubby issued a decision “(1) recognizing the
Halftown Group as the government of the Cayuga Nation for purposes of entering into a contract
under the ISDEAA [Indian Self-Determination and Education Assistance Act] and declining to
recognize Plaintiffs for such purposes; (2) awarding an ISDEAA contract grant to the Halftown
Group, on behalf of the Cayuga Nation; and (3) declining to award an ISDEAA contract to
[Plaintiffs] on behalf of the Cayuga Nation” (the “Decision”). Id. ¶ 54. Plaintiffs characterize
the Decision as a reversal of “longstanding federal policy,” and challenge it on a number of
substantive and procedural grounds. Id. ¶¶ 55-81.
Plaintiffs filed a notice of appeal with the Interior Board of Indian Appeals (“IBIA”),
requesting that the Decision be vacated. Id. ¶¶ 82-83. The IBIA eventually transferred the
appeal to Defendant Michael Black, the then-Acting Assistant Secretary for Indian Affairs, who
issued a decision denying Plaintiffs’ appeal. Id. ¶¶ 89, 95.
On September 20, 2017, Plaintiffs filed this lawsuit, claiming that the Decision, and the
affirmance of the Decision, violated the Administrative Procedure Act (“APA”) and Plaintiffs’
constitutional right to due process. Id. ¶¶ 100-65. As relief, Plaintiffs seek that both decisions be
declared unlawful and vacated, that the Court enjoin Defendants from relying on the vacated
decisions for any action by the Department of the Interior, that the individuals involved in
3 rendering these decisions be enjoined from further adjudicating the questions in this case, that
this matter be remanded to the BIA “for government to government consultation and, as
appropriate, decision by a neutral decision-maker on recognition and the Plaintiffs’ ISDEAA
application,” and that they be granted costs and attorneys’ fees. Id. at 26-27.
II. LEGAL STANDARD
Rule 24(a) of the Federal Rules of Civil Procedure governs intervention as a matter of
right. That provision provides, in relevant part, that “[o]n timely motion, the court must permit
anyone to intervene who . . . 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 existing parties adequately
represent that interest.” Fed. R. Civ. P. 24(a)(2). Consistent with this language, the United
States Court of Appeals for the District of Columbia Circuit (the “D.C. Circuit”) has identified
four requirements for intervention as a matter of right:
(1) Timeliness: First, an application to intervene in a pending action must be timely. Karsner v. Lothian, 532 F.3d 876, 885 (D.C. Cir. 2008). Whether a given application is timely is a context-specific inquiry, and courts should take into account (a) the time elapsed since the inception of the action, (b) the probability of prejudice to those already party to the proceedings, (c) the purpose for which intervention is sought, and (d) the need for intervention as a means for preserving the putative intervenor’s rights. Id. at 886.
(2) Interest: Second, the putative intervenor must have a “legally protected” interest in the action. Id. at 885. The test operates in large part as a “practical guide,” with the aim of disposing of disputes with as many concerned parties as may be compatible with efficiency and due process. United States v. Morten, 730 F.Supp.2d 11, 16 (D.D.C. 2010).
(3) Impairment of Interest: Third, the action must threaten to impair the putative intervenor’s proffered interest in the action. Karsner, 532 F.3d at 885. The inquiry is not a rigid one: consistent with the Rule’s reference to dispositions that may “as a practical matter” impair the putative intervenor’s interest, Fed. R. Civ. P. 24(a)(2), courts look to
4 the “practical consequences” of denying intervention, Fund for Animals, Inc. v. Norton, 322 F.3d 728, 735 (D.C. Cir. 2003) (citing Natural Res. Def. Council v. Costle, 561 F.2d 904, 909 (D.C. Cir. 1977)).
(4) Adequacy of Representation: Fourth, and finally, no existing party to the action may adequately represent the putative intervenor’s interests. Karsner, 532 F.3d at 885. Significantly, the putative intervenor’s burden here is de minimis, and extends only to showing that there is a possibility that its interests may not be adequately represented absent intervention. Fund for Animals, 322 F.3d at 735.
In addition to these four requirements, which emanate from the text of Rule 24(a) itself, a
putative intervenor must further establish that it has standing under Article III of the
Constitution. Fund for Animals, 322 F.3d at 731-32. Where a party seeks to intervene as a
defendant in order to uphold or defend an agency action, it must establish: (a) that it would suffer
a concrete injury-in-fact if the action were to be set aside, (b) that the injury would be fairly
traceable to the setting aside of the agency action, and (c) that the alleged injury would be
prevented if the agency action were to be upheld. See Am. Horse Prot. Ass’n, Inc. v. Veneman,
200 F.R.D. 153, 156 (D.D.C. 2001); see also Friends of Animals v. Kempthorne, 452 F. Supp. 2d
64, 68 (D.D.C. 2006) (identifying requirements for constitutional standing in an action involving
an agency action).
III. DISCUSSION
Putative Intervenor the Cayuga Nation Council has a right to intervene in this case. As
explained in more detail below, Putative Intervenor has standing and satisfies the requirements
for intervention as a matter of right under Rule 24(a)(2). The Court will, however, set certain
conditions on the Cayuga Nation Council’s participation in this litigation. Because the Putative
Intervenor will be granted leave to intervene as a matter of right, the Court need not consider its
alternative argument that it should be granted permissive intervention under Rule 24(b).
5 A. Standing
First, Putative Intervenor has established standing. In order “[t]o establish standing under
Article III, a prospective intervenor—like any party—must show: (1) injury-in-fact, (2)
causation, and (3) redressability.” Fund for Animals, 322 F.3d at 732-33 (quoting Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). Where, as here, a party seeks to intervene
as a defendant to uphold an action taken by the government, the party must establish that it will
be “injured in fact by the setting aside of the government’s action it seeks to defend, that this
injury would have been caused by that invalidation, and the injury would be prevented if the
government action is upheld.” Am. Horse Prot. Assoc., 200 F.R.D. at 156; see also Military
Toxics Project v. EPA, 146 F.3d 948, 954 (D.C. Cir. 1998) (holding that an association of
chemical manufacturers had standing to intervene as defendants in a case involving a challenge
to an EPA regulation because intervenors “would suffer concrete injury if the court grants the
relief the petitioners seek”).
The government decisions challenged in this case were favorable to the Putative
Intervenor because they recognized it as the Cayuga Nation’s lawful governing body and
awarded it a federal contract. The relief Plaintiffs seek—the vacating of those decisions—would
clearly cause Putative Intervenor harm. It would undermine Putative Intervenor’s current
recognition as the government of the Cayuga Nation and their relationship with the federal
government, and place at risk the Putative Intervenor’s receipt of funds from federal contracts.
Upholding the challenged decisions would prevent these harms. This is more than enough to
establish standing for an intervenor. See Crossroads Grassroots Policy Strategies v. Fed.
Election Comm’n, 788 F.3d 312, 317 (D.C. Cir. 2015) (“Our cases have generally found a
sufficient injury in fact where a party benefits from agency action, the action is then challenged
6 in court, and an unfavorable decision would remove the party’s benefit.”); California Valley
Miwok Tribe v. Salazar, 281 F.R.D. 43, 46-47 (D.D.C. 2012) (in dispute over the Department of
Interior’s determination of the legitimate government of a federally-recognized Indian tribe,
holding that proposed intervenors had standing because if the plaintiffs in the matter prevailed,
government-to-government relations between the federal government and the putative
intervenors would cease and the putative intervenors would stop receiving federal funds).
Plaintiffs’ arguments to the contrary are not persuasive. Plaintiffs argue that the Putative
Intervenor does not have a legally protected interest in this lawsuit because it has already
received the funds from the ISDEAA contract granted to it as part of the Decision. See Pls.’
Opp’n at 3. Although Plaintiffs challenge the legality of the decision to enter into that contract,
they do not seek disgorgement of the funds Putative Intervenor has received from the contract.
Id. Therefore, in Plaintiffs’ view, the outcome of this case is of no consequence to the Putative
Intervenor.
This argument lacks merit. As an initial matter, the factual premise of the argument—
that the Putative Intervenor has already received the funds under the ISDEAA contract at issue—
is disputed by the Putative Intervenor and appears to be contradicted by the actual contract. See
Put. Int.’s Reply at 1-2. That contract indicates that it matures in September 2018, and that a
balance of the total award to the Cayuga Nation still remains. See id., Ex. A. Putative
Intervenor would be injured if the Court vacated the Decision in this case because that would
presumably prevent Putative Intervenor from receiving any additional funds from the contract.
Moreover, even if the Putative Intervenor had already received all of the funds from the
challenged contract and Plaintiffs were not seeking the disgorgement of those funds, the Court is
skeptical of Plaintiffs’ claim that vacating the decisions at issue in this case would have
7 absolutely no negative impact on the Putative Intervenor. In large part, that skepticism is driven
by statements Plaintiffs themselves have made in this case, which paint the challenged decisions
as potentially having import beyond the single ISDEAA contract at issue. For example, in their
Motion for Preliminary Injunction, Plaintiffs contend that the Decision could enable the Putative
Intervenor to “assert exclusive access to federal and state funding, exclusive control over Nation
resources and assets, and exclusive authority to speak for the Cayuga Nation regarding the
Nation’s government-to-government relationship with the United States.” Pls.’ Mem. in Support
of Mot. for Preliminary Injunction, ECF No. 22, at 35. Plaintiffs also state that “[a]lthough the
BIA decision properly applies only to a federal contract with that agency under the ISDEAA, the
[Cayuga Nation Council] is wielding the decision to arrogate to itself exclusive authority to deal
with all federal agencies on all matters, and thereby impair Plaintiffs’ nation to nation
relationship with the United States and cut off federal funding to the Plaintiffs.” Id. at 33.
Accepting Plaintiffs’ representations that the Decision could—at least as a practical matter—
have these effects, it appears to the Court that vacating that Decision would harm the Putative
Intervenor. Indeed, given that Plaintiffs are not seeking disgorgement of the funds from the
particular ISDEAA contract at issue, it would seem that stemming these secondary effects of the
Decision is actually the primary goal of Plaintiffs’ lawsuit.
In sum, the challenged decisions are favorable to the Putative Intervenor. Vacating them
would injure the Putative Intervenor and upholding them would prevent that injury.
Accordingly, the Putative Intervenor has standing.
B. Requirements for Intervention as a Matter of Right
Having found that the Putative Intervenor has standing to intervene, the Court must now
determine whether it satisfies the four requirements for intervention as a matter of right: (1) its
8 application to intervene was timely; (2) it has a “legally protected” interest in this action; (3) this
action threatens to impair that interest, and (4) no existing party to this action adequately
represents its interests. See Fund for Animals, 322 F.3d at 735-37. The Court is satisfied that all
of these requirements are met.
1. Timeliness
Plaintiffs do not challenge Putative Intervenor’s motion as untimely, and for good reason.
The motion was timely filed in the early stages of this case, on the same day Defendants were
required to respond to Plaintiffs’ Complaint. Defendants filed a partial motion to dismiss on that
day, see ECF No. 16, but have yet to file an answer. See Fund for Animals, 322 F.3d at 735
(motion to intervene filed before defendants filed answer was timely). The parties are currently
briefing Plaintiffs’ Motion for Preliminary Injunction, which will in no way be delayed by the
granting of Putative Intervenor’s motion. The Court can conceive of no way in which the timing
of this motion has prejudiced any of the current parties.
2. Legally Protected Interest
The Putative Intervenor also has a legally protected interest in this action. As described
above, the Putative Intervenor has standing because it would sustain an “injury-in-fact” if the
Court were to award the relief requested by Plaintiffs. See supra, Part III.A. For the same
reasons that the Putative Intervenor has standing to intervene, it has a “legally protected” interest
in this action. See Jones v. Prince George’s Cty., Maryland, 348 F.3d 1014, 1018-19 (D.C. Cir.
2003) (holding that “because [the putative intervenor] has suffered a cognizable injury sufficient
to establish Article III standing, she also has the requisite interest under Rule 24(a)(2).”); Fund
For Animals, 322 F.3d at 735 (“Our conclusion that the [putative intervenor] has constitutional
standing is alone sufficient to establish that [it] has ‘an interest relating to the property or
9 transaction which is the subject of the action.’”); Mova Pharm. Corp. v. Shalala, 140 F.3d 1060,
1076 (D.C. Cir. 1998) (“[The putative intervenor] need not show anything more than that it has
standing to sue in order to demonstrate the existence of a legally protected interest for purposes
of Rule 24(a).”).
3. Impairment of Interest
Next, the Court finds that this action threatens to impair the Putative Intervenor’s interest.
In determining whether an applicant’s interests will be impaired, courts in this Circuit look to the
“practical consequences” that the applicant may suffer if intervention is denied. Natural Res.
Def. Council, 561 F.2d at 909; see also Reporters LLC v. United States Dep’t of Justice, 307
F.R.D. 269, 278-79 (D.D.C. 2014); Am. Horse Prot. Ass’n, 200 F.R.D. at 158. Simply put, a
decision in Plaintiffs’ favor in this case would impair Putative Intervenor’s interests because
Plaintiffs are attacking a decision that was favorable to the Putative Intervenor both in terms of
receiving federal funds and in terms of instilling its governance of the Cayuga Nation. See
California Valley, 281 F.R.D. at 47 (holding that an action threatened to impair a putative
intervenor’s 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.”); Wildearth Guardians v. Salazar, 272 F.R.D. 4, 14 (D.D.C. 2010) (holding that an
action threatened to impair a putative intervenor’s interest because “[s]imply put, the Bureau’s
decision below was favorable to Antelope, and the present action is a direct attack on that
decision.”).
4. Adequacy of Representation
Finally, the Court finds that the current federal government Defendants do not adequately
represent the Putative Intervenor’s interest in this action. In assessing whether representation by
10 existing parties is adequate, the Supreme Court has held that this requirement “is satisfied if the
applicant shows that representation of his interest ‘may be’ inadequate; and the burden of making
that showing should be treated as minimal.” Trbovich v. United Mine Workers, 404 U.S. 528,
538 n.10 (1972); see also Dimond v. District of Columbia, 792 F.2d 179, 192 (D.C. Cir. 1986)
(burden is “not onerous”). As particularly relevant here, courts in this Circuit “have often
concluded that governmental entities do not adequately represent the interests of aspiring
intervenors.” Fund For Animals, 322 F.3d at 736.
The federal government Defendants may not adequately represent Putative Intervenor’s
interests in this action. The Putative Intervenor’s interests are in defending what it views as the
“tribal sovereignty of the Cayuga Nation,” espousing what it views as the correct interpretation
of Cayuga law, protecting its recognition as the governing body of the Cayuga Nation, and
ensuring its continued access to federal monies. These are narrow, particular interests specific to
the Cayuga Nation Council. Although the federal government has an interest in defending the
decisions it has made that are challenged in this case, it does not share the particular, narrow
interests of the Cayuga Nation Council that are listed above. 2 Instead, the federal government
represents the public interest of its citizens as a whole, and would be “shirking its duty were it to
2 Putative Intervenor claims that it has a particular interest in resolving this litigation quickly that the federal government might not share. See Put. Int.’s Mot. at 10. Plaintiffs argue that this claim is belied by the fact that the Putative Intervenor has attached to its Motion to Intervene various threshold dispositive motions that it would seek to file if granted leave to intervene, the resolution of which would necessarily slow this case. The Court’s determination that the federal government’s interests are distinct from the Putative Intervenor’s interests such that the federal government would not adequately represent the Putative Intervenor does not depend on the Court finding that the federal government would not pursue an expeditious resolution of this lawsuit. Nonetheless, the Court notes that the Putative Intervenor agreed on a teleconference with the Court on February 12, 2018 to not file the motions attached to its Motion to Intervene. Instead, it will incorporate the arguments therein, as appropriate, into other pleadings, such as its response to Plaintiffs’ Motion for a Preliminary Injunction or cross-motions for summary judgment.
11 advance [a] narrower interest at the expense of its representation of the general public interest.”
Fund For Animals, 322 F.3d at 737 (quoting Dimond, 792 F.2d at 192-93). Accordingly, the
Court is not convinced that the federal government would adequately represent the particular
interests of the Cayuga Nation Council in this case.
C. Conditions Upon Intervention
Even where the Court concludes that intervention as a matter of right is appropriate, its
inquiry is not necessarily at an end: district courts may impose appropriate conditions or
restrictions upon the intervenor’s participation in the action. Fund for Animals, 322 F.3d at 737
n.11. The Court now considers what conditions, if any, to impose upon Putative Intervenor’s
participation.
The inquiry is necessarily context-specific, and the conditions should be tailored to fit the
needs of the particular litigation, the parties, and the district court. In the past, courts have barred
intervenors from injecting collateral issues into the litigation. See, e.g., Brady Campaign to
Prevent Gun Violence v. Salazar, 612 F.Supp.2d 1, 11 n.8 (D.D.C. 2009) (granting intervention
of right but prohibiting intervenors from raising new claims or collateral issues); Cnty. of San
Miguel, Colorado v. MacDonald, 244 F.R.D. 36, 48 n.17 (D.D.C. 2007) (limiting intervention of
right to claims within the scope of the complaint, but declining to impose other conditions).
Other courts have required intervenors to consult with one another prior to filing papers with the
Court and restricted their presentations to non-cumulative arguments. See, e.g., Earthworks v.
U.S. Dep’t of Interior, Civil Action 09-01972 (HHK), 2010 WL 3063143, at *2 (Aug. 3, 2010)
(granting intervention as a matter of right but requiring consultation with federal defendants and
restricting presentation to arguments not advanced by other parties). In the end, the primary
limitation on the district court’s discretion is that any conditions imposed should be designed to
12 ensure the fair, efficacious, and prompt resolution of the litigation. See United States v. S.
Florida Water Mgmt. Dist., 922 F.2d 704, 710 (11th Cir.) (district court may condition
intervention “on such terms as will be consistent with the fair, prompt conduct of this
litigation.”), cert. denied, 502 U.S. 953 (1991). To achieve this salutary purpose, the district
court should remain attuned to the two conflicting goals of intervention: i.e., “to achieve judicial
economies of scale by resolving related issues in a single lawsuit, and to prevent the single
lawsuit from becoming fruitlessly complex or unending.” Smuck v. Hobson, 408 F.2d 175, 179
(D.C. Cir. 1969).
In order to ensure the fair and efficacious resolution of this action, the Court shall require
Putative Intervenor the Cayuga Nation Council to comply with the following conditions:
• The intervening party shall meet and confer with current Defendants prior to the filing of any motion, responsive filing, or brief to determine whether its positions may be set forth in a consolidated fashion—separate filings by the intervening party shall include a certificate of compliance with this requirement and briefly describe the need for separate filings. The parties shall not file separate pleadings that repeat the same arguments; • The intervening party shall confine its arguments to the existing claims in this action and shall not interject new claims or stray into collateral issues; • The intervening party shall comply with each of the directives set forth in the [5] Order Establishing Procedures for Cases Assigned to Judge Colleen Kollar-Kotelly, issued on September 27, 2017. • The intervening party shall adhere to the schedule and requirements set forth in the [25] Scheduling and Procedures Order, issued on February 12, 2018, including filing any responses to Plaintiffs’ Motion for Preliminary Injunction and Motion to Supplement the Administrative Record on the same day as Defendants: February 26, 2018. The Court finds that the foregoing conditions strike the appropriate balance between
ensuring the expedient resolution of this action while preserving a space for the intervening party
to articulate its positions and defend its interests.
13 D. Permissive Intervention
Because the Court concludes that the Putative Intervenor is entitled to intervene as a
matter of right, it is unnecessary to determine whether the Putative Intervenor would be entitled
to intervene by permission pursuant to Rule 24(b). See Am. Horse Prot. Assoc., 200 F.R.D. at
156 (concluding that movant was entitled to intervene as of right and declining to reach question
of permissive intervention).
IV. CONCLUSION
For the foregoing reasons, the Court shall GRANT the Motion of the Cayuga Nation
Council to Intervene. As intervening party, the Cayuga Nation Council shall comply with the
conditions set forth in this Memorandum Opinion. An appropriate Order accompanies this
Memorandum Opinion.
/s/ COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE