Oklahoma Ex Rel. Edmondson v. Tyson Foods, Inc.

FILED
United States Court of Appeals
Tenth Circuit

September 21, 2010
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

STATE OF OKLAHOMA, ex rel.
W.A. DREW EDMONDSON, in his
capacity as ATTORNEY GENERAL
OF THE STATE OF OKLAHOMA
and OKLAHOMA SECRETARY OF
THE OFFICE OF ENVIRONMENT
J.D. STRONG in his capacity as the
TRUSTEE FOR NATURAL
RESOURCES FOR THE STATE OF
OKLAHOMA,

Plaintiffs - Appellees,
v. No. 09-5134
TYSON FOODS, INC.; TYSON
POULTRY, INC.; TYSON CHICKEN,
INC.; COBB-VANTRESS, INC.;
GEORGE’S, INC.; GEORGE’S
FARMS, INC.; PETERSON FARMS,
INC.; SIMMONS FOODS, INC.;
CAL-MAINE FARMS, INC.; CAL-
MAINE FOODS, INC.; CARGILL,
INC.; CARGILL TURKEY
PRODUCTION, LLC,

Defendants - Appellees,
___________________________

CHEROKEE NATION,

Movant - Appellant.
 APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
(D.C. NO. 4:05-CV-00329-GKF-PJC)

A. Diane Hammons, Attorney General, (Sara E. Hill, Assistant Attorney General,
with her on the briefs), Cherokee Nation, Tahlequah, Oklahoma, for Movant -
Appellant.

Jay T. Jorgensen, Sidley Austin LLP, Washington, D.C., (Virginia A. Seitz,
Thomas C. Green, Mark D. Hopson, Sidley Austin LLP, Washington, D.C.;
Robert W. George, Vice President and Associate General Counsel, Bryan Burns,
Timothy T. Jones, Tyson Foods, Inc., Springdale, Arkansas; Michael R. Bond,
Kutak Rock LLP, Fayetteville, Arkansas, with him on the briefs for Defendants -
Appellees Tyson Foods, Inc., Tyson, Poultry, Inc., Tyson Chicken, Inc., and
Cobb-Vantress, Inc.) (Gary V. Weeks, Woodson W. Bassett III, James M. Graves,
Vince Chadick, K.C. Dupps Tucker, Bassett Law Firm, Fayetteville, Arkansas;
Randall E. Rose, George W. Owens, Owens Law Firm, P.C., Tulsa, Oklahoma,
with him on the briefs for Defendants - Appellees, George’s, Inc. and George’s
Farms, Inc.) (Robert P. Redemann, Perrine, McGivern, Redemann, Reid, Berry &
Taylor, P.L.L.C., Tulsa, Oklahoma; Robert E. Sanders, Young Williams, P.A.,
Jackson, Mississippi, with him on the briefs for Defendants - Appellees Cal-
Maine Farms, Inc. and Cal-Maine Foods, Inc.) (John H. Tucker, Theresa Noble
Hill, Rhodes, Hieronymus, Jones, Tucker & Gable, PLLC, Tulsa, Oklahoma;
Delmar R. Ehrich, Bruce Jones, Krisann C. Kleibacker Lee, Faegre & Benson
LLP, Minneapolis, Minnesota, with him on the briefs for Defendants - Appellees
Cargill, Inc. and Cargill Turkey Production, Inc.) (John R. Elrod, Vicki Bronson,
Conner & Winters, L.L.P., Fayetteville, Arkansas, with him on the briefs for
Defendant - Appellee Simmons Foods, Inc.) (A. Scott McDaniel, Nicole M.
Longwell, Philip D. Hixon, McDaniel Hixon Longwell & Acord, PLLC, Tulsa,
Oklahoma, with him on the briefs for Defendant - Appellee Peterson Farms, Inc.),
for Defendants - Appellees.

Ingrid L. Moll, Motley Rice LLC, Hartford, Connecticut, (Frederick C. Baker,
Motley Rice, LLC, Mount Pleasant, South Carolina; Louis W. Bullock, Robert M.
Blakemore, Bullock Bullock & Blakemore PLLC, Tulsa, Oklahoma; M. David
Riggs, Richard T. Garren, Robert A. Nance, David P. Page, Sharon Gentry, Riggs,
Abney, Neal, Turpen, Orbison & Lewis, Tulsa, Oklahoma, with her on the briefs),
for Plaintiff - Appellee.

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Before TACHA, EBEL, and HARTZ, Circuit Judges.

HARTZ, Circuit Judge.

The Cherokee Nation (the Nation) appeals the district court’s denial of its

motion to intervene in a dispute between the State of Oklahoma (the State) and

Defendants-Appellees (collectively, Tyson). The State had sued Tyson because of

Tyson’s disposal of poultry waste in the Illinois River Watershed (IRW). The

IRW, in which both the State and the Nation claim interests, covers approximately

one million acres straddling the Oklahoma-Arkansas border. Within it are

hundreds of large-scale poultry farms. Tyson operates some of these farms and

contracts with other farmers to raise poultry until maturity, using methods

established by Tyson; Tyson collects the poultry at maturity for processing and

marketing. These poultry-growing operations generate hundreds of thousands of

tons of poultry waste each year.

Raising a number of legal theories, the State sought monetary relief for past

and future damages and an injunction against alleged pollution. More than three

years into the litigation, Tyson moved to dismiss the monetary claims on the

ground that the Nation was a required party that had not been joined. The State

argued that the Nation was not a required party but also negotiated an agreement

in which the Nation purportedly assigned the State its interests in the litigation.

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The district court ruled that the agreement was invalid and granted Tyson’s

motion, restricting the previously scheduled trial to the State’s claims for

injunctive and other equitable relief.

Nineteen days before trial the Nation moved to intervene so that it could

proceed on three claims against Tyson for injunctive and monetary relief. The

district court denied the motion as untimely. Although the Nation argued that it

had moved promptly after learning that the State could not adequately represent

the Nation’s interests in the litigation, the district court ruled that the Nation had

delayed too long, that Tyson would be severely prejudiced by the lengthy trial

delay that would be necessary if the Nation were permitted to intervene, and that

the Nation would not be prejudiced by a denial of intervention.

We have jurisdiction under 28 U.S.C. § 1291, see WildEarth Guardians v.

U.S. Forest Service, 573 F.3d 992, 994 (10th Cir. 2009) (order denying

intervention was final), and affirm. The district court did not abuse its discretion

in denying the motion to intervene. In particular, the district court could properly

find that the Nation had unduly delayed seeking to intervene because from the

outset of the litigation it had no reason to believe that the State would represent

its interests in monetary relief.

I. BACKGROUND

A. Early Stages of the Litigation

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 On June 13, 2005, the State sued Tyson in the United States District Court

for the Northern District of Oklahoma. According to the initial complaint, Tyson

and the individual poultry farmers improperly disposed of poultry waste by both

storing it and using it as fertilizer on lands within the IRW. Because the waste

contains high levels of certain chemicals and microbes that are harmful to the

environment and human health, these disposal practices allegedly result in injury

to the lands, waters, and biota of the IRW. The complaint further alleged that

Tyson is responsible for these disposal practices and thus the resultant injury to

the IRW.

The State brought suit as owner of the streams and rivers of the IRW, as

holder of all natural resources within the State’s boundaries “in trust on behalf of

and for the benefit of the public,” Complaint at 3, State of Oklahoma v. Tyson

Foods, Inc., No. 05-cv-0329 JOE-SAJ (N.D. Okla. June 13, 2005), and as trustee

under the federal Comprehensive Environmental Response, Compensation, and

Liability Act (CERCLA) for natural resources within Oklahoma. The initial

complaint stated nine causes of action. Two causes of action were under

CERCLA, 42 U.S.C. § 9607. The first CERCLA claim sought recovery of costs

(such as the costs of monitoring and evaluating water quality and biota in the

IRW) incurred by the State in responding to Tyson’s disposal practices, as well as

a declaration that Tyson is responsible for all future response costs that the State

would incur. In the second CERCLA claim the State—acting as “CERCLA

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trustee for ‘natural resources’ in, belonging to, managed by, held in trust by,

appertaining to or otherwise controlled by” the State—sought damages for injury

to and loss of natural resources, including the cost of restoring or replacing the

injured resources, the value of lost services resulting from the injury to the

resources, and the reasonable cost of assessing injury to the resources. Id. at 21.

The State’s third and fourth claims were based on state and federal nuisance law.

They alleged that Tyson’s disposal practices unreasonably “inva[ded,] interfere[d]

with and impair[ed]” the State’s and the public’s beneficial use of the IRW, and

sought damages (including punitive damages) and an injunction requiring Tyson

to cease its disposal methods and remediate the IRW. Id. at 24. The fifth claim

sought damages and injunctive relief for trespass on the State’s property interests

in the IRW. The State’s sixth and seventh claims sought civil penalties and

injunctive relief for violations of the Oklahoma Environmental Quality Code, see

Okla. Stat. tit. 27A, §§ 2-6-105, 2-3-504; the Oklahoma Agricultural Code, see

Okla. Stat. tit. 2, §§ 2-16, 2-18.1; the Oklahoma Registered Poultry Feeding

Operations Act, see Okla. Stat. tit. 2, §§ 10-9.7, 10.9-11; and certain provisions of

the Oklahoma Administrative Code, see Okla. Admin. Code § 35:17-5-5. The

State’s eighth claim was for unjust enrichment, seeking restitution and

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disgorgement of profits from the alleged improper waste disposal. A ninth claim

was later voluntarily dismissed with prejudice. 1

The complaint did not mention the Nation. But the Nation was aware of

the litigation from the outset. In March 2005, when alerted to the State’s

intention to file suit, Chad Smith, Principal Chief of the Nation, wrote the

following in a letter to Oklahoma’s Attorney General:

I’ve had the opportunity to meet with a number of poultry growers in
Delaware County, a quarter of whom are Cherokee. They are
concerned that the proposed lawsuit would, in effect, put them out of
business. I advised them that I would contact your office and offer
our assistance and services in any way that might be helpful to
facilitate discussions to reconcile the poultry litter problem affecting
water quality in Northeastern Oklahoma.

Aplt. App., Vol. 4 at 688.

This letter reflected the Nation’s obvious interest in the subject matter of

the lawsuit. Much of the IRW is within the boundaries of the Cherokee Nation

and, as clearly emerged later in the lawsuit, the Nation claims that various federal

laws and treaties have given it ownership and control over lands, waters, and

natural resources of the IRW since before Oklahoma statehood. Yet despite these

claims regarding the IRW, nothing in the record indicates that before 2009 the

Nation ever expressed to the State (much less reached an agreement with the

1
The complaint was later amended on two occasions. The first amended
complaint added a count seeking civil penalties and injunctive relief under the
Resource Conservation and Recovery Act, 42 U.S.C. § 6972. The second
amended complaint, filed July 16, 2007, dropped a defendant. The changes from
the original complaint are irrelevant to the issues on appeal.

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State) that it should share in the State’s recovery of costs or damages in its

lawsuit.

The Nation was, however, engaged early on with both the State and Tyson.

In late 2005, after the filing of the initial complaint, representatives of the Nation

met with representatives of both Tyson and the State. The Nation discussed its

interests in the IRW, but asked Tyson “not to pursue a course of action that would

put the validity of the Cherokee Nation’s claims” to parts of the IRW before the

court. Id. at 647.

The litigation had sufficiently matured by November 15, 2007, that the

district court issued a scheduling order: Discovery was to be completed by

March 2, 2009, and trial was to be held the following September (the specific date

of September 21, 2009, being set in a later order on April 24, 2009). Also, a day

before the scheduling order the State sought a preliminary injunction enjoining

Tyson from “(1) applying poultry waste to any land within the IRW and (2)

allowing the application of poultry waste generated at its respective poultry

feeding operations and/or the respective poultry feeding operations under contract

with it to any land within the IRW.” Aplee. Supp. App. at 130. The district court

eventually denied the request for a preliminary injunction on September 29, 2008,

and we affirmed. See Att’y Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d 769

(10th Cir. 2009).

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 B. Motion to Dismiss

Although Tyson’s answer to the original complaint had raised the defense

of failure to join a required party, Tyson did not take any formal steps regarding

that defense until June 26, 2008, when it served the State with discovery requests

seeking documents regarding agreements and communications between the State

and the Nation with respect to claims to natural resources within the IRW. On

August 11, the State responded with several documents indicating that its claims

to IRW resources potentially conflicted with those of the Nation.

Relying in part on the documents received, Tyson filed on October 31,

2008, a motion seeking to dismiss the case for failure to join the Nation. Pointing

to the Nation’s historical claims of ownership over resources within the IRW and

its concern about being subjected to multiple and inconsistent obligations, Tyson

asserted that the Nation was a required party to the lawsuit. See Fed. R. Civ. P.

19(a)(1). And because the Nation was a sovereign entity that could not be joined

without its consent, Tyson contended that the damages claims had to be dismissed

under Fed. R. Civ. P. 19(b) (setting standard for dismissal of claims when

required party cannot be joined). In the alternative, Tyson moved for judgment as

a matter of law on the ground that the State lacked standing to raise certain claims

because it had not demonstrated that it had an ownership or trusteeship interest

over the IRW’s natural resources.

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 On the day that Tyson filed its Rule 19 motion, the Nation’s Principal Chief

issued a public statement regarding the motion. It said:

The water rights of the Cherokee Nation came into existence long
before the State of Oklahoma or the United States. From the time the
Nation exchanged with the federal government all its land in the east
with the land in northeastern Oklahoma, water rights have remained
intact. However, I have to point out that the Cherokee Nation has
not filed this motion to dismiss and it would be a mistake to assume
that we support the unconditional dismissal of this lawsuit. The
Cherokee Nation, like the state of Oklahoma, has to protect the water
quality interests within our jurisdiction. . . . We will take time to
analyze this filing and act accordingly. In the meantime, the
Cherokee Nation hopes to continue working with the state on water
rights discussions, so that tribal and state regulatory structures can
cooperate in advancing our common interests.

Aplt. App., Vol. 4 at 743.

The State responded to the motion on January 8, 2009. The response

devoted little attention to possible money claims by the Nation. It said: “[Tyson]

ha[s] offered no evidence that an award of damages from [Tyson] to the State

would as a practical matter impair or impede any [Nation] interest.” Id., Vol. 3 at

415. And after noting that the Nation “has not indicated that it intends to sue

[Tyson],” it added that in any event, “CERCLA precludes double recovery of

natural resource damages.” Id. at 416. The State did not so much as hint that it

was seeking any damages for the Nation’s benefit.

Four months later, on May 19, 2009, while Tyson’s Rule 19 motion was

pending, the Nation and the State entered into an agreement (the Agreement) that

acknowledged the Nation’s “substantial interests in lands, water and other natural

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resources located within the [IRW].” Id. at 532. The Agreement, which was

purportedly effective on June 13, 2005 (the date the complaint was filed), was

executed by the Attorneys General of the Nation and Oklahoma. It assigned to

the State the Nation’s right to prosecute any claims relating to those brought by

the State in its lawsuit against Tyson. Although the Agreement asserted that “it is

not necessary for the Court to resolve the precise nature of each sovereign’s

interests in lands, water and other natural resources of the [IRW],” id., it also

stated that should the court find it necessary to determine the nature of those

interests, the Agreement would be “null and void,” id. at 534.

On July 2, 2009, the district court held oral argument on Tyson’s Rule 19

motion, and on July 22 it granted the motion in part and denied it in part. The

court first concluded that the Agreement was invalid. It reasoned (1) that the

Agreement did not meet Oklahoma’s statutory standards for cooperative

agreements with Indian Tribes; (2) that the Attorney General of the Nation was

not authorized to enter into such agreements; (3) that Oklahoma law prohibited

the assignment of state-law claims not arising out of contract (thereby negating

the Nation’s purported transfer of rights to prosecute the trespass and nuisance

claims); and (4) that the Agreement’s purported retroactivity was prohibited by

Oklahoma law and, in any event, could not cure any jurisdictional defects that

existed at the time the complaint was filed.

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 The district court then ruled that the Nation was a required party under Fed.

R. Civ. P. 19, and, after observing that joinder was not feasible, dismissed each of

the State’s claims for damages. It explained that the damages claims could not be

decided without the Nation’s involvement:

Without a legally binding assignment of the Cherokee Nation’s rights
and interests in the IRW, a damage award to the State either abridges
the right of the Cherokee Nation to pursue its own claim for money
damages or, to the extent the Cherokee Nation is not barred by issue
or claim preclusion, conversely exposes defendants to the risk of
multiple, inconsistent judgments. And . . . if the State loses its claim
for damages, defendants face a real and substantial risk the Cherokee
Nation, unfettered by issue and claim preclusion, would pursue
damage claims on its own.

Id. at 564–65. The court also ruled that the State lacked standing “to prosecute

monetary damage claims for injury to the [Nation’s] substantial interests in lands,

water and other natural resources located in the IRW.” Id. at 567–68. In light of

its ruling, the court dismissed as moot several outstanding motions regarding the

damages claims. The State unsuccessfully moved for reconsideration. Also,

Tyson and the State, joined by the Nation, engaged in settlement discussions. But

that effort proved unsuccessful.

C. Motion to Intervene

On September 2, 2009, nineteen days before trial was scheduled to begin,

the Nation filed a motion to intervene as of right under Fed. R. Civ. P. 24(a). The

Nation’s proposed intervenor complaint, asserting the Nation’s ownership interest

in the IRW, alleged CERCLA claims for cost-recovery and damages and a

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federal-nuisance-law claim for damages and injunctive relief. The next day, the

State, assuming that intervention by the Nation would resuscitate its own damages

claims, moved to continue the trial for 120 days “in order to remove any obstacles

to the granting of the Motion to Intervene by the Cherokee Nation,” State’s

Motion for Continuance of Trial at 1, Tyson Foods, Inc., No. 05-cv-329-GKF

(PJC) (N.D. Okla. Sept. 3, 2009); and on September 10 it filed a response in

support of the Nation’s motion to intervene.

Tyson also filed a response on September 10. It contended that the

Nation’s motion to intervene was untimely. And with respect to the State’s

request for a 120-day continuance, Tyson argued that the request “grossly

underestimate[d]” the need for additional time if the Nation were allowed to

intervene. Aplt. App., Vol. 4 at 667. It asserted that “extensive discovery and

briefing will be required to adjudicate the numerous additional, complex issues of

law and fact by virtue of the Cherokee Nation’s separate claims and interests.”

Id. It also said that resetting the trial date would cause severe disruption:

[T]he calendars of defense counsel, defense witnesses and perhaps
the calendar of the Court are not so malleable that a several month
long trial can simply be penciled in a mere four months from now as
the State suggests. Defense counsel, defense witnesses and this
Court have postponed and delayed other important business and cases
in order to accommodate Plaintiffs’ demands for a September 21 trial
date with the expectation that such matters can be attended to once
this trial concludes in October or November of 2009.

Id. (citation omitted).

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 On September 15, six days before the scheduled trial date, the district court

held a hearing on the Nation’s motion. The Nation’s Attorney General

acknowledged that the Nation had “tried very diligently not to become a party to

this lawsuit,” had “never wished to have our ownership in the [IRW] an issue in

this case,” and had asked Tyson “not to assert our interest in the watershed.” Id.,

Vol. 5 at 869. But she argued that the motion was timely because the Nation had

previously thought that it could rely on the State to protect its “interest in

addressing the pollution,” id. at 879, and did not discover until the court’s July 22

order that it could not. She also contended that the Nation would suffer prejudice

if it were not permitted to join because, among other reasons, it lacked the

resources to prosecute the case without the State’s assistance. She conceded that

there would be some delay were the Nation’s motion granted, but argued that no

more than a two-month delay would be necessary.

The State supported the Nation’s position. It argued that permitting

intervention would not enlarge the scope of the original claims and would entail

only minimal additional discovery. It further contended that the Nation’s motion

was timely because the Nation had reasonably believed until the district court’s

July 22 order that the State was adequately protecting its interests.

Tyson countered that because the Nation had sat on its rights until

September 2009, its motion was untimely. It also contended that intervention

would cause great disruption to the case, because resuscitating previously

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dismissed claims would require addressing new, complicated issues, such as the

extent of the Nation’s ownership over the IRW and whether any statute of

limitations barred its claims.

The district court denied the Nation’s motion. It said:

This is not a particularly easy issue and there is no perfect resolution
to this issue. This case was filed over four years and three months
ago, and trial is scheduled to begin less than a week from today. As
previously stated, the Nation admits . . . “there’s a possibility for
delay” . . . in the event this Court were to permit intervention. The
Nation attaches to its motion a proposed intervenor’s complaint with
three causes of action. The filing of an intervenor’s complaint,
including a federal common law nuisance claim would trigger more
than a 120 day delay. It would require the reinsertion of three causes
of action that were previously dismissed, the consequent
resuscitation of numerous motions pertaining to those causes of
action, both motions for summary judgment and motions in limine.
Perhaps more significantly, it would trigger the necessity of a new
round of discovery pertaining to at least the statute of limitations
issues, a new round of motions for summary judgment and likely a
new round of motions in limine, in addition to those 41 that have
already been filed.
Such an approach would result in delay and expense, which
would severely prejudice the parties who have been actively
proceeding toward trial these past four-plus years. [Tyson] ha[s]
adequately demonstrated that the Cherokee Nation knew of its
interest in this case from the outset of the litigation but chose not to
intervene for a number of reasons and the Court will not second-
guess those reasons.
The Nation will not be prejudiced in the sense that its claims
will not be impaired by the denial of its motion to intervene. The
Cherokee Nation may bring its claims in a separate lawsuit if it
wishes. This Court—would have been pleased to grant the Nation’s
motion to intervene if it had been timely. Unfortunately it is not.
For these reasons, as well as the other reasons set forth in the
defendants[’] brief, the motion to intervene . . . is denied.

Id. at 927–28.

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 On September 24, 2009, the State and Tyson proceeded to a bench trial on

the State’s equitable claims. Trial took 52 days and the parties are awaiting final

judgment.

II. DISCUSSION

Fed. R. Civ. P. 24(a)(2) provides, in pertinent part, as follows:

On 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 interests, unless existing parties adequately represent that
interest.

Thus, a movant may intervene as a matter of right if “(1) the [motion] is timely,

(2) the [movant] claims an interest relating to the property or transaction which is

the subject of the action, (3) the [movant’s] interest may be impaired or impeded,

and (4) the [movant’s] interest is not adequately represented by existing parties.”

Elliott Indus. Ltd. P’ship v. BP Am. Prod. Co., 407 F.3d 1091, 1103 (10th Cir.

2005). Timeliness is the sole matter of dispute in this appeal.

A. Standard of Review

We review a district court’s ruling on timeliness for an abuse of discretion.

See Coal. of Ariz./N.M. Counties for Stable Econ. Growth v. Dep’t of Interior,

100 F.3d 837, 840 (10th Cir. 1996). Under the abuse-of-discretion standard, “a

trial court’s decision will not be disturbed unless the appellate court has a definite

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and firm conviction that the lower court made a clear error of judgment or

exceeded the bounds of permissible choice in the circumstances.” Phelps v.

Hamilton, 122 F.3d 1309, 1324 (10th Cir.1997).

B. The Timeliness of the Nation’s Motion

The timeliness of a motion to intervene is determined “in light of all of the

circumstances.” Sanguine, Ltd. v. U.S. Dep’t of Interior, 736 F.2d 1416, 1418

(10th Cir. 1984). We have recognized three factors as particularly important:

“[(1)] the length of time since the [movant] knew of [its] interests in the case;

[(2)] prejudice to the existing parties; [and (3)] prejudice to the [movant].” Id.

But these consideration are not exclusive and the trial court should also consider

“the existence of any unusual circumstances.” Id. The Nation contends that these

factors establish an abuse of discretion. We disagree.

1. Length of Time Since the Nation Knew of its Interest

“When the applicant appears to have been aware of the litigation but has

delayed unduly seeking to intervene, courts generally have been reluctant to allow

intervention.” 7C Charles A. Wright et al., Federal Practice & Procedure § 1916,

at 539–40 (3d ed. 2007). In this case it is undisputed that the Nation had been

aware of the litigation for more than four years before its eve-of-trial motion to

intervene. Indeed, even before suit was filed in June 2005, the Nation’s Principal

Chief wrote to the Oklahoma Attorney General about “the proposed lawsuit.”

Aplt. App., Vol. 4 at 688.

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 The Nation and the State argue, however, that the timeliness of the Nation’s

motion must be measured only from when it had reason to recognize that its

interests were not being adequately represented by a party to the litigation. In

particular, they contend that the Nation reasonably believed that the State was

adequately representing its interests until shortly before the motion to intervene.

According to them, (1) it was only on October 31, 2008, when Tyson filed its

Rule 19 motion to dismiss for absence of a required party, that the Nation became

aware of the possibility that its interests would not be adequately represented by

the State, and (2) it was not until July 22, 2009, when the district court ruled on

that motion, that the Nation definitively knew that the State could not in fact

represent its interests.

We agree that a potential party could not be said to have unduly delayed in

moving to intervene if its interests had been adequately represented until shortly

before the motion to intervene. After all, an earlier motion to intervene—when

the movant’s interests were adequately represented by a party—would have been

denied. See San Juan County, Utah v. United States, 503 F.3d 1163, 1203 (10th

Cir. 2007) (plurality opinion). Therefore, we join the other circuits that measure

delay from when the movant was on notice that its interests may not be protected

by a party already in the case. See Reich v. ABC/York-Estes Corp., 64 F.3d 316,

322 (7th Cir. 1995) (“[W]e do not expect a party to petition for intervention in

instances in which the potential intervenor has no reason to believe its interests

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are not being properly represented . . . .”); Sierra Club v. Espy, 18 F.3d 1202,

1206 (5th Cir. 1994) (“A better gauge of promptness is the speed with which the

would-be intervenor acted when it became aware that its interests would no longer

be protected by the original parties.”); Hill v. W. Elec. Co., 672 F.2d 381, 386

(4th Cir. 1982) (“[C]ritical issue with respect to timeliness is whether the

proposed intervenor moved to intervene ‘as soon as it became clear that the

interests of the unnamed class members would no longer be protected by the

named class representatives.’” (quoting United Airlines, Inc. v. McDonald, 432

U.S. 385, 394 (1977) (ellipsis omitted)); Legal Aid Soc’y of Alameda Co. v.

Dunlop, 618 F.2d 48, 50 (9th Cir. 1980) (“[T]he relevant circumstance here for

determining timeliness is when the intervenor became aware that its interest

would no longer be protected adequately by the parties . . . .”); cf. Elliott, 407

F.3d at 1103 (“Prior to the district court’s entry of final judgment it was

reasonable for [the prospective intervenor] to rely on Appellees to argue the issue

of subject matter jurisdiction.”).

There may, of course, be different degrees of clarity of notice that a party

cannot or will not represent a potential movant’s interest; and the district court

will need to consider that clarity (or lack of it) in weighing the factors for and

against intervention. For example, the court could expect the motion to intervene

to be filed promptly when delay could significantly prejudice other parties, even

though the inadequacy of representation is not free from doubt.

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 It helps the Nation little, however, to measure its delay from when it was

on notice that the State might not adequately represent its interests. It had such

notice long before its motion. True, in one respect the Nation had every reason to

expect the State to protect its interests. In seeking injunctive relief against Tyson,

the State was doing all that the Nation might wish to do in that regard. Moreover,

in seeking funds from Tyson under CERCLA to remedy the effects of prior

pollution (say, money for decontaminating an area), the State may have been

doing just what the Nation would have wanted. But the Nation’s interests that are

relevant to the question before us are the interests pursued in its proposed

complaint in intervention; and, as we shall see, the Nation has made no showing

that it ever had reason to rely on the State to pursue many of those interests on its

behalf.

The Nation’s proposed complaint stated three causes of action. All relied

on essentially the same allegations against Tyson as those in the State’s

complaint, except that they alleged the interests of the Nation, rather than the

State, with respect to the alleged pollution. The first count was for CERCLA cost

recovery under 42 U.S.C. § 9607. It alleged that as a result of Tyson’s improper

release of hazardous substances into the IRW, the Nation “has incurred, and will

continue to incur, necessary response costs . . . includ[ing] . . . costs of

monitoring, assessing and evaluating water quality, wildlife and biota in the

IRW.” Aplt. App., Vol. 4 at 627–28. “Accordingly,” said the complaint, the

-20-
“Nation is entitled to recover from [Tyson] all of the [Nation’s] past and present

necessary response costs” and to a declaratory judgment that Tyson is liable “for

all future necessary response costs incurred by the [Nation].” Id. at 628. The

State, however, had not sought recovery of past, present, or future response costs

of the Nation. Rather, it sought “all of the State of Oklahoma’s past and present

necessary response costs,” and sought a declaratory judgment that Tyson was

liable for “all future necessary response costs incurred by the State of Oklahoma.”

Id., Vol. 2 at 324 (emphasis added). The Nation could never have reasonably

thought that the State was representing the Nation’s interests in recovering its

damages. Even if the Nation believed that it would not need to recover any future

response costs because the State would be doing all the responding (although

nothing in the record supports that belief), the prayer for recovery of response

costs already incurred by the Nation could not be answered by a State victory in

its suit.

The Nation’s second count, for CERCLA resource damages under

42 U.S.C. § 9607, is similar. It alleges that Tyson’s pollution has resulted in

“injury to, destruction of, and loss of natural resources in the IRW, . . . for which

the [Nation] is trustee,” just as the State alleged its trustee status in its complaint.

Id., Vol. 4 at 629. The count then alleges that the Nation “has incurred

reasonable and necessary costs to assess and evaluate this injury, destruction and

loss of the natural resources” and seeks damages, including “(a) the cost to

-21-
restore, replace, or acquire the equivalent of such natural resources; (b) the

compensable value of lost services resulting from the injury to such natural

resources; and (c) the reasonable cost of assessing injury to the natural resources

and the resulting damages.” Id. at 630. Again, however, the State’s complaint

did not seek such damages for the Nation, and the Nation could not have

reasonably thought that the State was representing its interests in those damages.

As with the first count, the Nation may have thought that it would not need to

seek future damages because the State would “restore, replace, or acquire the

equivalent” of the injured or lost resources; but the State’s suit could not have

recovered for the Nation the cost of assessing injury or the value to the Nation of

lost services.

As for the Nation’s third count, a claim of federal common-law nuisance,

the injunctive relief sought is identical to what the State sought on its claims that

went to trial. But the compensatory and punitive damages sought by the Nation

for past and future injury could not have been recovered for the Nation in the

State’s suit. The Nation has not argued any theory under which the State could

have adequately represented the Nation’s interest in obtaining monetary relief on

this claim.

We can sum up as follows regarding the three types of interests that the

Nation sought to pursue in its proposed complaint. First, insofar as the Nation

had an interest in injunctive relief against Tyson, it could have reasonably

-22-
assumed from the outset of the suit that the State would adequately represent the

Nation’s interests, and nothing that occurred before the Nation moved to

intervene would suggest the contrary. The district court ruled that the State could

pursue its injunctive relief and has held a trial on that matter. The Nation had no

need to intervene in that trial; and apparently it never sought to modify its motion

to intervene to allow it to be a party at that trial.

Second, insofar as the Nation had an interest in recovering past response

and assessment costs under CERCLA and both compensatory damages (for past

and future injury) and punitive damages under federal common law, the State’s

complaint never sought such recovery for the Nation, and nothing in the record

suggests that the Nation could have reasonably believed that those interests would

be adequately protected by the State in its lawsuit.

Third, insofar as the Nation had an interest in damages for its future

response and restoration costs under CERCLA, the State’s complaint did not seek

such damages for the Nation. Perhaps the Nation could have believed that the

State’s suit would protect this interest of the Nation because success in the State’s

suit would eliminate any need for the Nation to incur such future costs; but

nothing in the record directly supports such a belief.

Accordingly, for much, perhaps most, of what the Nation sought in its

proposed complaint, nothing had happened in the four-plus years since the State

filed its complaint that would indicate that the State could no longer adequately

-23-
represent the Nation’s interests. Either the Nation’s interests were never

represented by the State (the interest in past CERCLA damages and in all

common-law-nuisance compensatory and punitive damages) or were still being

adequately represented by the State (the interest in injunctive relief). In

particular, with respect to these interests the Nation could not point to some event

shortly before it moved to intervene that could explain a sudden effort to

intervene. On this basis alone, the district court could properly find an unjustified

delay by the Nation in seeking to intervene.

Moreover, even if one assumes that the Nation reasonably believed when

the State filed its suit that the Nation would be protected by the suit from

incurring future costs to remedy the alleged pollution, the Nation can still be

charged with a delay of almost a year. The Nation was on notice that its reliance

on the State was questionable when Tyson filed its motion to dismiss in October

2008. Indeed, the Nation was certainly aware of the risk to its interests in early

2009 when it began negotiations with the State to assign it those interests. The

Nation has not explained why it could not have moved to intervene at the same

time that it was conducting those negotiations; such a motion would have

protected it in the event of deadlocked negotiations or, as happened, court

rejection of the agreement. If the date for commencement of trial had still been

far off, it may have made perfect sense to try negotiating before moving to

intervene. But given the imminent date for a lengthy trial, the district court could

-24-
decide that the Nation (and the State) were taking an unreasonable risk by putting

all their eggs in the negotiated-agreement basket. A potential intervenor cannot

ignore the prejudice to others that could result from a last-minute intervention.

Likewise, the Nation’s attempts to facilitate settlement of the case in

August 2009 (a month before trial) came too late to justify delay in moving to

intervene. After all, a party cannot excuse its unreadiness for trial on the ground

that it had been trying to settle the dispute. At some point well before trial a

party must realize that it needs to plan for the possibility that negotiations will

fail.

That said, however, we recognize that delay in itself does not make a

request for intervention untimely. “The requirement of timeliness is not a tool of

retribution to punish the tardy would-be-intervenor . . . .” Utah Ass’n of Counties

v. Clinton, 255 F.3d 1246, 1250 (10th Cir. 2001) (internal quotation marks

omitted). The other factors in the test for untimeliness must also be considered.

See id. (timeliness requirement is a “guard against prejudicing the original parties

by the failure to apply sooner” (internal quotation marks omitted)); 7C Wright et

al., supra § 1916, at 541–48 (“The most important consideration in deciding

whether a motion for intervention is untimely is whether the delay in moving for

intervention will prejudice the existing parties to the case.”). We now turn to

those factors.

2. Prejudice to Existing Parties

-25-
 The district court explained the nature of the prejudice that the existing

parties could suffer:

This case was filed over four years and three month ago, and trial is
schedule to begin less than a week from today. As previously stated,
the Nation admits . . . “there’s a possibility for delay” . . . in the
event this Court were to permit intervention. . . . The filing of an
intervenor’s complaint, including a federal common law nuisance
claim would trigger more than a 120 day delay. It would require the
reinsertion of three causes of action that were previously dismissed,
the consequent resuscitation of numerous motions pertaining to those
causes of action, both motions for summary judgment and motions in
limine. Perhaps more significantly, it would trigger the necessity of
a new round of discovery pertaining to at least the statute of
limitations issues, a new round of motions for summary judgment
and likely a new round of motions in limine, in addition to those 41
that have already been filed.
Such an approach would result in delay and expense, which would
severely prejudice the parties who have been actively proceeding toward
trial these past four-plus years.

Aplt. App., Vol. 5 at 927–28.

The Nation concedes that “the original parties . . . will suffer some

discomfort if intervention is granted.” Aplt. Br. at 20. And it has not disputed

the gist of the district court’s observations about what would have needed to be

done before trial had the court permitted intervention. In any event, those

observations are amply supported by the record. For example, to prepare for the

Nation’s proposed common-law nuisance claim, discovery would have been

necessary regarding the Nation’s ownership of resources in the IRW; and because

the claims could be subject to a statute of limitations, that issue would also need

to be investigated. Further, Tyson indicated that it would defend against the

-26-
Nation’s claim by arguing that the Nation was responsible for the presence of

certain pollutants in the IRW, thus raising another issue requiring discovery. The

CERCLA damages claims would also require additional discovery because the

district court had ruled (in granting Tyson’s motion to dismiss the damages claims

under Rule 19) that damages under CERCLA would need to be awarded to the

State and the Nation in proportion to the actual management and control exercised

by each plaintiff over the injured resources, a matter not yet resolved, or even

investigated, in the case.

The State and Nation argue that these matters would not be the

consequence of any delay in the Nation’s moving to intervene but simply the

result of allowing intervention. They point out, correctly, that the prejudice to

other parties must be prejudice caused by the movant’s delay, not by the mere fact

of intervention. See Clinton, 255 F.3d at 1251. But the point here is not that

intervention by the Nation would require more work by the existing parties. That

in itself did not concern the district court, which said that it would gladly have

granted a motion to intervene if it had been made earlier. Rather, the court’s

reference to the need for this work explained why intervention would require a

substantial delay before the case could go to trial. Cf. id. (intervention proper

when “no scheduling order ha[d] been issued, no trial date set, and no cut-off date

for motions set”). And that last-minute delay would create prejudice—prejudice

that would not have resulted from an earlier intervention. Perhaps a short delay

-27-
in trial could be accommodated without much of a burden. But the delay of more

than 120 days anticipated by the district court would be something else. With the

start date set for less than three weeks from the date of the Nation’s motion to

intervene, the parties had necessarily already arranged their schedules and the

schedules of their witnesses. For example, the numerous attorneys (the record

shows that at the hearing on the motion to intervene, the State had 11 attorneys

and the six defendants were represented by 18 attorneys from nine firms) would

have removed other obligations from their calendars for the next several months.

And at the hearing, counsel for Tyson represented that “[d]ozens of witnesses

have cleared their schedule and some of them are here, ready to go. We have

moved to Tulsa [and] set up war rooms . . . .” Aplt. App., Vol. 5 at 917.

The State and the Nation argue that Tyson has exaggerated the burden of

delaying the trial, pointing out that Tyson had requested a continuance not long

before the Nation moved to intervene. To be sure, Tyson had filed such a motion

on June 30; but it requested only an indefinite “brief postponement,” Def.’s Mot.

for Modification of May 14, 2009 Scheduling Order & Integrated Br. in Supp. at

3, Tyson Foods, Inc., No. 05-cv-329-GKF (PJC) (N.D. Okla. June 30, 2009). And

Tyson’s motion reads less like a request for continuance than a plea for rulings on

numerous pending motions (for summary judgment and the exclusion of expert

testimony) that would impact trial preparation. The thrust of the motion was that

-28-
Tyson needed to be able to plan efficiently for trial, the same interest that it

raised in opposing the delay that would result from the Nation’s intervention.

The district court could properly decide that the prejudice to Tyson would

be significant. See Culbreath v. Dukakis, 630 F.2d 15, 22 (1st Cir. 1980) (“The

purpose of the basic requirement that the application to intervene be timely is to

prevent last minute disruption of painstaking work by the parties and the court.”).

(The impact on the State could be similar, but the State clearly thought that the

advantages of being able to pursue its damages claims at the trial outweighed the

costs of delay.)

3. Prejudice to the Movant

The third factor—prejudice to the movant from denying intervention—also

weighed in favor of denial. As the district court said: “The Nation will not be

prejudiced in the sense that its claims will not be impaired by the denial of its

motion to intervene. The Cherokee Nation may bring its claims in a separate

lawsuit if it wishes.” Aplt. App., Vol. 5 at 928.

The Nation’s opening brief on appeal argues prejudice, but only tersely.

The entire discussion of the specific prejudice in this case consists of the

following paragraph:

Practically, the Cherokee Nation may have no adequate
alternative if the intervention is denied. If this cases continues the
Cherokee Nation, while it may not be legally bound as a party, may
find itself unable to prosecute its claims against [Tyson]. Since both
the State and the Nation must bring their claims for damages

-29-
 collectively against [Tyson], [1] the Nation’s claims may well be
practically barred by res judicata if the State of Oklahoma is
unsuccessful in its case for injunctive relief currently pending before
the District Court and barred from re-alleging its claims based upon
the same facts. [2] In addition, a loss by the State of Oklahoma at
the District Court could well lead to appeals regarding multiple
issues, including the issue of whether the Cherokee Nation has any
rights to the waters of the Illinois River Watershed. By function of
the District Court’s denial of the Cherokee Nation’s motion to
intervene, the Nation would have no input into how this Court
decided those issues, except perhaps as an amicus.

Aplt. Br. at 21.

As we understand the Nation’s first point—its practical-bar argument—it is

concerned that if the State loses at the bench trial on equitable relief, the State

could be barred by res judicata from pursuing damages claims in a later suit and

therefore could not join the Nation in such a suit. In our view this concern was

not adequately presented to the district court. Res judicata is not mentioned in

the Nation’s opening and reply briefs submitted to the district court in support of

its motion to intervene. And the only references to the doctrine at the hearing on

the motion are so brief that they would naturally be understood (and may well

have been intended) to refer to the possibility that the Nation itself would be

barred by the doctrine. 2 See Tele-Commc’ns, Inc. v. Comm’r, 104 F.3d 1229,

2
The first reference to res judicata by the Nation’s Attorney General came
in the following comment:

We could bring a new CERCLA lawsuit, Your Honor. The problem,
we believe that we would have to join the State of Oklahoma
pursuant to your Honor’s finding. They have immunity. We would
(continued...)

-30-
1232 (10th Cir. 1997) (“Generally, an appellate court will not consider an issue

raised for the first time on appeal.”). In any event, the possibility of prejudice is

more speculative than real. The Nation has consistently stated that it would rely

on the State’s efforts to prove the claims against Tyson. Why, then, would the

Nation expect to be able to prevail in a damages trial if the State cannot obtain a

favorable result in the trial of equitable issues? (We further note that the Nation

never sought to intervene for just the trial on equitable issues.)

The Nation’s other prejudice argument fares no better. Its rights in the

IRW cannot be affected by the State’s lawsuit if it is not also a party. And to the

2
(...continued)
have to do all of these things that have already been done in this
lawsuit and also, Your Honor, depending on what happens here, we
might very well face the real issues of res judicata or issue
preclusion. Depending upon what happens to the State’s case in this
lawsuit it could very well affect any later lawsuit.

Aplt. App., Vol. 5 at 877. Later, the Attorney General was even more
abbreviated:

Prejudice to the applicant we’ve talked about, it’s not just money,
it’s also the time, the issue preclusion, res judicata, bringing in
another sovereign, starting all over, the existence of any unusual
circumstances.

Id. at 905. The Tyson attorney obviously thought that these comments were
suggesting that the Nation itself could be barred. His response was:

Issue preclusion does not run against a nonparty, so that’s just a
complete red herring.

Id. at 926.

-31-
extent that it wishes to be heard if those rights somehow become an appellate

issue, its participation as an amicus would seem perfectly adequate.

4. Unusual Circumstances

Finally, we consider whether unusual circumstances argue for or against

permitting the Nation to intervene. Two such circumstances here might be that

the delay caused by intervention would have adverse effects (1) on the public

interest in a prompt injunction against pollution by Tyson and (2) on the efficient

operation of the district court (with negative impacts on litigants in other cases).

With respect to the first potentially adverse impact, the State decided that

any benefit from a prompt injunction would be outweighed by the desirability of

jointly trying the injunction and damages claims. Although the district court

would not necessarily be bound by the State’s assessment of the public interest,

the court had already denied a preliminary injunction and it did not rely on this

public interest in denying intervention. We therefore give no weight to this

consideration.

As for the adverse impact on the district court and on litigants in other

lawsuits, the continuance that would have been necessary to allow the Nation’s

intervention could have wreaked havoc on the court’s calendar. Again, however,

the court did not rely on this prejudice in denying intervention (although Tyson

raised it both below and on appeal). We therefore have confined our analysis to

-32-
the three factors on which courts customarily focus in determining timeliness of a

motion to intervene.

5. Summary

In light of the record before the district court regarding undue delay,

prejudice to the parties, and prejudice to the Nation, the court did not abuse its

discretion in denying intervention.

III. CONCLUSION

We AFFIRM the denial of the Nation’s motion to intervene.

-33-
No. 09-5134, Oklahoma v. Tyson Foods, et al.

TACHA, Circuit Judge, dissenting:

I respectfully dissent. Rule 19(a) and Rule 24(a)(2) “are intended to mirror

each other.” Oneida Indian Nation v. Madison Cnty., 605 F.3d 149, 162 (2d Cir.

2010); see also Fed. R. Civ. P. 24, 1966 Amendment Note (“Intervention of right

is here seen to be a kind of counterpart to Rule 19(a) . . . .”). “If a party is not

‘necessary’ under Rule 19(a) then it cannot satisfy the test for intervention as of

right under Rule 24(a)(2).” Oneida Indian Nation, 605 F.3d at 162 (alterations

omitted). Likewise, an applicant under Rule 24(a)(2) “is [generally] entitled to

intervene in an action when his position is comparable to a [necessary party]

under Rule 19(a)[].” Fed. R. Civ. P. 24, 1966 Amendment Note.

Of course, even if a party is deemed “necessary” under Rule 19(a), it will

not be permitted to intervene under Rule 24(a)(2) if its motion is untimely.

Although not an exhaustive list of the circumstances that render a motion to

intervene untimely, an applicant’s motion is generally untimely if: (1) the

applicant has delayed unduly in bringing its motion to intervene, see 7C Charles

A. Wright et al., Federal Practice & Procedure § 1916 at 539–40 (3d ed. 2007)

(“When the applicant appears to have been aware of the litigation but has delayed

unduly seeking to intervene, courts generally have been reluctant to allow

intervention.”); or (2) the timing of the applicant’s intervention will cause undue

prejudice to the existing parties, see Utah Ass’n of Cntys v. Clinton, 255 F.3d
1246, 1250 (10th Cir. 2001) (“The requirement of timeliness is not a tool of

retribution to punish the tardy would-be intervenor, but rather a guard against

prejudicing the original parties by a failure to apply sooner.”).

In this case, the district court held that the Nation is a “necessary party,”

however, just over a month later, it denied the Nation’s motion to intervene as

untimely. In my view, the Nation did not delay unduly in moving to intervene,

nor would the timing of its intervention cause prejudice to the existing parties

which outweighs the prejudice that would be caused by its exclusion from this

lawsuit. Accordingly, I respectfully dissent from the majority’s opinion which

affirms the denial of the Nation’s motion to intervene.

To begin, the majority applies the incorrect standard of review. Although

we normally review a district court’s ruling on timeliness for an abuse of

discretion, see, e.g., Coal. of Ariz./N.M. Cntys. for Stable Econ. Growth v. Dep’t

of Interior, 100 F.3d 837, 840 (10th Cir. 1996), when a district court’s decision is

premised on an improper legal standard, it is not entitled to deference. See

Kretzinger v. First Bank of Waynoka, 103 F.3d 943, 946 (10th Cir. 1996)

(“[W]hen a lower court’s factual findings are premised on improper legal

standards or on proper ones improperly applied, they are not entitled to the

protection of the clearly erroneous standard, but are subject to de novo review.”).

The majority adopts a timeliness test that measures the applicant’s delay from the

time it could no longer reasonably believe its interests were adequately

-2-
represented by an existing party. The district court, however, did not apply this

test. Rather, it held that “[t]he defendants have adequately demonstrated that the

Cherokee Nation knew of its interest in this case from the outset of the litigation.”

Aplt. App. Vol. V at 927–28 (emphasis added). Because the district court did not,

in considering the timeliness of the Nation’s motion to intervene, take into

account whether the Nation could have reasonably believed its interests were

adequately represented by an existing party, it did not apply the correct test for

timeliness. Therefore, its decision should be reviewed de novo rather than for an

abuse of discretion.

Next, while I agree with the majority’s newly adopted test for timeliness, I

cannot concur in its application of that test. As the majority correctly holds,

when assessing the timeliness of a motion to intervene under Rule 24(a)(2), the

applicant’s delay in bringing the motion is measured from the time the applicant

could no longer reasonably believe its interests were adequately represented by an

existing party. 1 See Reich v. ABC/York-Estes Corp., 64 F.3d 316, 322 (7th Cir.

1995) (“[Applicants] reasonably believed their employer was representing their

1
Although the majority confusingly states that “we join the other circuits
that measure delay from when the movant was on notice that its interests may not
be protected by a party already in the case,” Maj. at 18 (emphasis added), the
majority’s application of this standard correctly measures delay from when the
Nation could no longer reasonably believe its interests were adequately
represented. See Maj. at 21 (“The Nation could never have reasonably thought
that the state was representing the Nation’s interests in recovering its damages.”).

-3-
interests.”) (emphasis added); Sierra Club v. Espy, 18 F.3d 1202, 1206 (5th Cir.

1994) (“[T]he movants legitimately believed that the Forest Service would defend

its timber sales and planning.”) (emphasis added) (quotations omitted); Hill v. W.

Elec. Co., 672 F.2d 381, 386 (4th Cir. 1982) (“[T]he critical issue with respect to

timeliness is whether the proposed intervenor moved to intervene as soon as it

became clear that the interests of the unnamed class members would no longer be

protected by the named class representatives.”) (emphasis added). With respect

to the CERCLA damages claims, the majority concludes that the Nation could

never have reasonably believed that its interests were adequately represented by

the State because “[t]he State . . . had not sought recovery of past, present, or

future response costs of the Nation.” Maj. at 20–21. In other words, the

majority holds that an applicant under Rule 24(a)(2) who is seeking damages

cannot reasonably believe that its interests are adequately represented by an

existing party unless an existing party explicitly seeks damages on behalf of the

applicant.

The rule is simply not construed so narrowly. Indeed, “[t]he representation

whose adequacy comes into question under [Rule 24(a)(2)] is not confined to

formal representation like that provided by a trustee for his beneficiary or a

representative party in a class action for a member of the class.” Fed. R. Civ. P.

24, 1966 Amendment Note. Rather, we have gone so far as to presume adequate

representation “when an applicant for intervention and an existing party have the

-4-
same ultimate objective in the litigation.” Clinton, 255 F.3d at 1255. There can

be little doubt that the ultimate objectives of the State and the Nation were

congruent with respect to the CERCLA claims—they both sought to recover

monetary damages from Tyson in order to compensate for and repair the damage

it allegedly caused to the IRW.

The majority also holds that even if the Nation could have reasonably

believed its interests were adequately represented by the State when the lawsuit

was initially filed, it “can still be charged with a delay of almost a year,” from the

time Tyson filed its Rule 19 motion. Maj. at 24. I disagree. In my view, at the

time Tyson filed its Rule 19 motion, the Nation could have reasonably believed

its interests were adequately represented because it could have reasonably

believed that the State would be allowed to pursue CERCLA damages

individually, and that the State and Nation could then jointly apportion those

damages through agreement or in subsequent litigation.

In resolving Tyson’s Rule 19 motion, the district court concluded that “the

only feasible way to compensate the co-trustees and avoid a double recovery or

unjust enrichment to one trustee at the expense of another is to award damages in

the ratio or percentage of actual management and control that is exercised by each

of the various co-trustees,” and that it could “make no determination of the ratio

or percentage of actual management and control exercised by the [Nation] in the

Nation’s absence.” Oklahoma v. Tyson Foods, Inc., 258 F.R.D. 472, 480 (N.D.

-5-
Okla. 2009). For this point, the district court relied on Coeur D’Alene Tribe v.

Asarco Inc., 280 F. Supp. 2d 1094 (D. Idaho 2003) (“Coeur D’Alene I”). That

decision, however, had been subsequently reconsidered and reversed by the judge

who issued it. See United States v. Asarco Inc., 471 F. Supp. 2d 1063, 1068 (D.

Idaho 2005) (“Coeur D’Alene II”) (“The Court revises its trusteeship ruling . . .”).

Indeed, in Coeur D’Alene II, Judge Lodge held:

The language of the statute dictates that a co-trustee acting
individually or collectively with the other co-trustees may go after
the responsible party or parties for the full amount of the damage,
less any amount that has already been paid as a result of a settlement
to another trustee by a responsible party. If there is a later
disagreement between the co-trustees, that disagreement would have
to be resolved by successive litigation between the trustees, but it
could in no way affect the liability of the responsible party or parties.

Id. Thus, until the district court resolved Tyson’s Rule 19 motion on July 22,

2009, the Nation could have, in reliance on Coeur D’Alene II, reasonably believed

that the State could adequately represent its interest in this lawsuit. 2 In my view,

the Nation’s delay should be measured from that date.

Next, I cannot agree with the majority’s assessment of the prejudice that

the Nation’s intervention would cause Tyson. “The prejudice prong of the

timeliness inquiry measures prejudice caused by the intervenor’s delay—not by

2
I express no view on whether the district court properly resolved Tyson’s
Rule 19 motion. Rather, I only point out that until that motion was resolved, the
Nation could have reasonably believed that the district court would adopt the
position of Coeur D’Alene II rather than the position of Coeur D’Alene I
regarding the CERCLA trustee issue.

-6-
the intervention itself.” Clinton, 255 F.3d at 1251 (quotations omitted). In its

discussion of the prejudice Tyson would suffer if the Nation were permitted to

intervene, the majority first cites the potential need for additional discovery and

additional motions regarding the Nation’s claims. The fact that intervention may

“double the work load” or “add issues” to a case, however, is a product “of

intervention itself rather than the timing of the motion to intervene.” Id.

The majority further notes that because the trial date was less than three

weeks away at the time the Nation sought to intervene, its intervention and the

trial delay it would cause would significantly disrupt Tyson’s attorneys’ and

witnesses’ schedules. To be sure, Tyson would suffer some added cost because of

a trial delay only three weeks before trial was set to begin; however, Tyson is at

least partly responsible for this belated delay and the attendant added cost.

Although Tyson raised its Rule 19 defense in its answer, it waited over three

years to pursue it. And, because the Nation could have reasonably believed its

interests were adequately represented until the district court deemed it a

“necessary” party, Tyson’s own delay in bringing its Rule 19 motion was a causal

factor in the timing of the Nation’s motion to intervene. In my view, Tyson

cannot now complain about the timing of the Nation’s motion to intervene when

Tyson is at least partly responsible for that timing. Furthermore, Tyson should

not be rewarded for waiting to pursue its Rule 19 defense until it would be

arguably too late for the Nation to intervene.

-7-
 I also cannot sympathize with Tyson’s protestations of the prejudice that

would be caused by a trial delay when not long before the Nation sought to

intervene, Tyson sought to continue the trial. It is irrelevant that Tyson’s motion

for a continuance may “read[] less like a request for a continuance than a plea for

rulings on pending motions.” Maj. at 28. The fact remains that on June 30, 2009,

Tyson sought to delay the trial and even argued that “[a] short continuance of the

trial date would not prejudice any party.” Def’s Mot. for Modification of May

14, 2009 Scheduling Order & Integrated Br. in Supp. at 3, Tyson Foods, Inc., No.

05-cv-329-GKF-PJC (N.D. Okla. June 30, 2009) (emphasis added). In my view,

Tyson’s request for a continuance and its claim on June 30 that a trial delay

would not prejudice any party greatly undermines its claim only two months later

that a trial delay would cause it extreme prejudice.

Finally, in discussing whether any unusual circumstances counsel for or

against allowing the Nation to intervene, the majority ignores one obvious

unusual circumstance—the significant loss the State will potentially incur if the

Nation is excluded from this lawsuit. During the more than three years that

Tyson waited to bring its Rule 19 defense, the State expended significant time and

money to develop its damages claims. When the district court ruled in favor of

Tyson on its Rule 19 motion, all of those claims were dismissed. If the Nation is

not permitted to intervene, the State and Nation will have to pursue the hundreds

of millions of dollars in damages the State initially sought on its own, together in

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a subsequent lawsuit. Neither the State nor the Nation believes a subsequent

cooperative suit is a realistic possibility. See Aplt. App. Vol. V at 875 (Attorney

General of the Nation explaining, “If we are not allowed to intervene in this

lawsuit, we will have to, at some point, file a new lawsuit. We will have to try to

join the State [] who also has immunity. Whether or not politically they can do it

at that time is an issue. Whether or not we can afford to do it is a very real

issue.”); see also Br. of State of Oklahoma at 31 (“Because neither sovereign can

be joined against its will, both would again need concurrently to waive their

sovereignty. Such coordination of priorities is often difficult, potentially

providing [Tyson] with an unwarranted and unjust escape from liability for

damages and/or response costs.”). Thus, if the Nation is excluded from this

lawsuit, the State will potentially have wasted the significant amount of time and

money it spent developing these complex damages claims. In my view, the loss

Tyson would incur by having to rearrange its attorneys’ and witnesses’ schedules

pales in comparison to the loss of time and money the State will potentially suffer

if the Nation is excluded from this action.

In sum, the Nation did not delay unduly in seeking to intervene in this

lawsuit. Rather, it acted quite prudently throughout and only sought to intervene

when it could no longer reasonably believe that its interests were adequately

represented by the State. Furthermore, because the prejudice the State will

potentially suffer if the Nation is excluded from this case is significantly greater

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than the prejudice Tyson will suffer if the Nation is permitted to intervene, I

would reverse the district court’s decision and allow the Nation to intervene so

that all the claims relating to Tyson’s alleged pollution of the IRW can be tried

together in one lawsuit. For these reasons, I respectfully dissent.

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