dissenting:
I respectfully dissent.
With respect to timeliness, two aspects of this ease justify the prospective intervenors’ delay. First, they do not seek to relitigate what the court decided prior to the motions to intervene. Though they do not agree with the court’s decisions, their motions ask leave to intervene only with respect to the implementation plans to be prepared subsequently, and a subsequent appeal.
The majority opinion misconstrues the intervenors’ position as an attempt to relitigate what has already been decided. The parties seeking intervention do not agree that sea cucumbers etc. are fish covered by the treaty, but they say expressly in their motion to intervene that they do not propose to relitigate it in the district court:
Inner Sound ... move[s] ... for intervention in this action for the limited purpose of participating in the negotiation and formation of those provisions of the Court’s implementation plan pursuant to the Court’s memorandum opinion and order dated December 20, 1994 and any and all proceedings related to the Implementation Plan or implementation of this Court’s decision of December 20, 1994. Applicants for intervention do not seek to relitigate previously decided issues, to reopen evidentiary issues, or to conduct discovery unrelated to their requested participation herein.
Harvest Divers likewise limit their motion to intervene. Their motion says they “accept the record in this proceeding as it is made to date,” but they want to protect their right to appeal the sea urchin and sea cucumber ruling now that the Washington Attorney General has withdrawn from its previous opposition to it, and want to be allowed to participate in the negotiations regarding implementation of the district court’s implementation plan.
As the majority opinion concedes, the general rule disfavoring post-judgment motions to intervene does not apply if the motion seeks only to participate in the appeal. United States ex rel. McGough v. Covington Technologies, 967 F.2d 1391, 1395 (9th Cir. 1992); Yniguez v. State of Arizona, 939 F.2d 727, 734 (9th Cir.1991). That exception applies here precisely, insofar as what they intervenors seek is the ability to participate in an appeal. It applies by analogy, insofar as the intervenors seek only to participate in the implementation negotiations following the court’s decision on the substantive issue of whether the crabs, sea urchins and sea cucumbers are fish covered by the treaty.
Second, the rule disfavoring post-judgment litigation had no application when the motions to intervene were denied, because this case had not gone to final judgment. As the majority opinion concedes, the motions to intervene were filed in March and denied in April, and the court directed that final judgment be entered in accord with its decision in August. Actually, final judgment is probably a misnomer even at that later time. There has been a final decision by the district court on an issue, but nothing to suggest that the litigation has reached an end. This litigation began in 1970. It has gone on for 2Jé decades, and promises to go on indefinitely into the future, as the district court protects treaty rights to the fish in the circumstances arising from time to time. This is not like a *1508traditional suit at equity, such as a suit for specific performance of a contract to convey real estate. In that kind of lawsuit, the final judgment enjoins the defendant to execute a conveyance, he does, and the case is over. This case will not be over. The opinion purporting to be the decision on which final judgment was issued says that “because the Court desires to have the benefit of the parties’ prior experience in Washington I, the Court defers the issue of injunctive relief or any plan of implementation until there has been input from the parties.” United States v. State of Washington, 873 F.Supp. 1422, 1450 (W.D.Wash.1994). It does not purport to end the district court’s control of the industry, end the process of adjudicating Indian treaty rights regarding the industry, or to be the injunction sought under Federal Rule of Civil Procedure 65(d). The district court determination that it needed “input from the parties” before issuing an injunction shows that what had been issued was not the final judgment.
In practical effect, the United States District Court regulates the Puget Sound fishery to protect treaty rights, has done so for twenty-five years, and there is no reason to doubt that it will do so for another twenty-five years. Where a district court controls an industry for decades or indefinitely, the length of the lawsuit makes it inequitable to exclude late participants in the manner which would be appropriate for a traditional suit at equity. See Textile Workers Union v. Allen-dale Co., 226 F.2d 765, 767 (D.C.Cir.1955) (“Obviously tailored to fit ordinary civil litigation, these provisions require other than literal application in atypical cases”).
In twenty-five years, the sea changes, in terms of what creatures are scarce or plentiful in Puget Sound, the technology changes, in terms of how practical it is to fish for one or another creature, and the market changes, in terms of how interested Japanese or American consumers may be in the catch. The eleven-year old child of a halibut fisherman when this lawsuit started in 1970 may now be the thirty-six year old skipper of a crab boat, with a different kind of participation in the industry and different economic interests than his father’s. Where a federal district court makes itself a permanent regulatory agency for an industry, it ill behooves the judiciary to exclude people who earn their living in the industry from being heard on how they shall be regulated, on the ground that they did not complain about other decisions at an earlier time.
As for prejudice to other parties by prolonging the litigation, there is no such thing as prolongation of something which has no end. Nor should we be concerned with preserving a delicate compromise the parties may work out, if other parties with important, unrepresented interests are excluded. A compromise between A and B in which they decide to take C’s fish does not deserve protection.
As for reasons for delay, there are two reasons why this factor should not cut against the intervenors. One is that the reasons were adequate. Intervention would not have been necessary had the state won a substantive decision that the sea creatures were not covered by the treaty, and Harvest Divers would not have needed to intervene if Inner Sound had succeeded. Second, intervention in a huge suit at equity is very .expensive. Someone must pay the lawyers. Parties with economic interests necessarily must weigh the huge litigation expense against the risk, and postpone bearing the expense as long as possible. We should not add to the risks and increase the penalties for late intervention, in a long-term regulatory equitable proceeding such as this one. That would cause numerous parties to intervene earlier, wasting their money and the court’s time. The prospective intervenors’ practical decision to let the Washington Attorney General do the work so long as she was on their side saved themselves and their adversaries money, and saved the court as well as the parties a great deal of needless effort. That is praiseworthy, not punishable.
The would-be intervenors have “an interest relating to the property of the transaction which is the subject of the action” and are “so situated that the disposition of the action may as a practical matter impair or impede [their] ability to protect that interest.” That is the standard for mandatory intervention under Federal Rule of Civil Procedure 24(a). *1509The intervenors’ interest is protected by the treaty, by the same words as the Indian tribes’ interest. The words of the Indian treaty, which is the basis for the claims asserted in this action, protect “all citizens,” not just the Indian tribes:
The right of taking fish, at all usual and accustomed ground and stations, is further secured to said Indians, in common with all citizens of the Territory, and of erecting temporary houses for the purpose of curing, together with the privilege of hunting, gathering roots and berries, and pasturing their horses on open and unclaimed lands: Provided, however, That they shall not take shell fish from any beds staked or cultivated by citizens.
Art. Ill of the Treaty of Medicine Creek, 10 Stat. 1133 (as quoted in Washington v. Washington State Commercial Passenger Fishing Vessel Association (Fishing Vessel), 443 U.S. 658, 674, 99 S.Ct. 3055, 3069, 61 L.Ed.2d 823 (1979) (emphasis added)).
The Supreme Court has already construed these words to create a treaty right to fish for non-Indian fishermen as well as Indian fishermen. “Both sides have a right, secured by treaty, to take a fair share of available fish.” Id. at 684-85, 99 S.Ct. at 3074 (emphasis added). That means that the non-Indian fishermen have a “right, secured by treaty.” It may be that the State of Washington adequately represented the interests of the would-be intervenors prior to the decision on the substantive issue of whether the sea cucumbers, etc., are fish covered by the treaty. If so, then the would-be intervenors were, prior to that decision, “adequately represented by existing parties,” so they were not entitled to intervention. Fed.R.Civ.P. 24(a). But once the state changed its position, then the would-be intervenors’ interests were no longer “adequately represented by existing parties.” That entitled them to intervene as of right.
Rule 24 is traditionally construed liberally in favor of intervention. See, e.g., Washington State Bldg. & Constr. Trades Council, AFL-CIO v. Spellman, 684 F.2d 627 (9th Cir.1982). Where there is “a relationship between the legally protected interests and the claims at issue,” that is generally enough for intervention. Sierra Club v. EPA, 995 F.2d 1478, 1484 (9th Cir.1993). The intervenors’ claims in this case relate to their legally-protected interests under the treaty to share the fish in common with the Indian tribes. Reliance before the substantive decision on the state was a reasonable justification for delaying the motion to intervene until afterward, as we held in Yniguez v. State of Arizona, 939 F.2d 727.
The district court regulates the industry in which the proposed intervenors earn then-livelihoods. They should be allowed to sit at the table where the compromises are made which will determine whether they can continue to earn an honest living in that industry.