Greene v. United States

REINHARDT, Circuit Judge,

dissenting:

No one denies the interest of the Tulalip Tribes in the allocation of fishing rights under the 1855 Treaty of Point Elliott. Furthermore, all recognize that such fishing rights play a significant part in the pursuit of this particular litigation by the Samish. Nonetheless, resting its decision upon the “different legal purpose” and “independent legal effect” of this action, the majority affirms the denial of intervention by the Tulal-ip Tribes. In doing so, the majority abandons the practical inquiry required by precedent in favor of reliance on formalistic dis*979tinctions, and retreats from our well-established policy of liberally construing Fed. R.Civ.P. 24 to allow intervention. Because I believe that legal technicality has no place in determining the right to intervene, I dissent.

I

Prior to 1966, Fed.R.Civ.P. 24(a) prescribed a strict, technical test for intervention of right. A 1966 amendment broadened the rule to allow more applicants to claim the right to intervene. Consistent with this intention, we have repeatedly stated that we “generally construe Rule 24 liberally in favor of potential intervenors.” In re Benny, 791 F.2d 712, 721 (9th Cir.1986); see also United States ex. rel. McGough v. Covington Technologies Co., 967 F.2d 1391, 1394 (9th Cir.1992); Scotts Valley Band of Pomo Indians v. United States, 921 F.2d 924, 926 (9th Cir.1990).

In addition to mandating broad construction, Rule 24 requires attention to practical considerations, not technical distinctions. United States v. Stringfellow, 783 F.2d 821, 826 (9th Cir.1986) (“we are guided primarily by practical considerations”), vacated on other grounds, 480 U.S. 370, 107 S.Ct. 1177, 94 L.Ed.2d 389 (1987). The 1966 amendment of Rule 24 “import[ed] practical considerations” and “free[d] the rule from undue preoccupation with strict considerations of res judica-ta.” Fed.R.Civ.P. 24 advisory committee note (1966 amendment). Thus, “[w]e have established a practical test which applicants must meet in order to qualify for intervention.” United States v. Oregon, 839 F.2d 635, 637 (9th Cir.1988) (emphasis added). Our four-factor test of timeliness, interest, practical impairment, and inadequate representation “essentially mirrors the language” of the Rule itself. McGough, 967 F.2d at 1394. Thus, both the rule and our precedent require that we address a motion for intervention with practical consequences in mind.

Because the “interest” factor, upon which the majority rests its affirmance, is simply a threshold requirement, broad and practical construction in favor of potential intervenors is particularly appropriate here.1 “[T]he criteria of practical harm to the applicant and the adequacy of representation by others are better suited to the task of limiting extension of the right to intervene.” County of Fresno v. Andrus, 622 F.2d 436, 438 (9th Cir.1980). “[T]he ‘interest’ test is primarily a practical guide to disposing of lawsuits by involving as many apparently concerned persons as is compatible with efficiency and due process.” Nuesse v. Camp, 385 F.2d 694, 700 (D.C.Cir.1967), quoted with approval in County of Fresno, 622 F.2d at 438.

Thus, practicality and liberality must govern the resolution of the Tulalip Tribes’ appeal. Our precedent requires this approach. It is not enough simply to recite the words “practical” and “liberal” in our opinion. We must apply them in the spirit of the concepts they embody. Here, the majority acknowledges that the right to intervention is to be broadly and practically construed, but then ignores this charge in favor of a narrow, technical' — and ultimately erroneous-application. By doing so, it disregards the mandate of the rule and our precedents.

Even if we were free to apply a different standard, we would be wrong to do so. The well-established emphasis upon practicality and liberality provides a sensible approach to intervention. In the continual debate over the function of the federal courts, there is a recurrent tension, real or imagined, between efficiency and the individual’s right of access to a federal judicial forum. On a wide array of legal issues, from collateral review of criminal convictions to challenges of administrative rule-making, justices and other jurisprudential experts tell us that we face a choice between greater efficiency and greater access. Conditioned to the existence of this dichotomy, we often classify jurists by their relative dedication to efficiency or access as the first order of the federal courts. Intervention, however, is one of the rare areas *980where efficiency and access are in clear accord.

A liberal policy in favor of intervention serves both efficient resolution of issues and broadened access to the courts. By allowing parties with a practical interest in the outcome of a particular case to intervene, we often prevent or simplify future litigation involving related issues; at the same time, we allow an additional interested party to express its views before the court.

The efficiency rationale in favor of liberalized intervention makes particular sense here. We have previously commented upon the complexity and multiplicity of litigation spawned by the allocation of fishing rights under the Treaty of Point Elliott: “[w]e cannot think of a more comprehensive and complex case than this.” United States v. Suquamish Indian Tribe, 901 F.2d 772, 775 (9th Cir.1990) (noting “numerous supplemental proceedings with voluminous filings”). Sprinkled throughout the case books are numerous opinions — appellate and trial court-dealing with the issue. If the Tulalip Tribes were allowed to intervene, future and seemingly inevitable litigation on Samish entitlement to treaty rights might be simplified or even avoided.

Nevertheless, the majority affirms the denial of intervention, concluding that this litigation is not sufficiently related to the issue of treaty fishing rights, in which the Tulalip Tribes have an undeniable interest. This holding seems plainly inconsistent with the principles governing the right of interested parties to intervene.

II

There can be no doubt that, as a practical matter, this litigation is about fishing rights under the Treaty of Point Elliott. In their complaint, the Samish heavily focus upon their rights under the 1855 treaty. The complaint describes the Samish as the present-day successor of the tribe “which was a party to the Treaty of Point Elliott.” Their allegations of the harms flowing from non-recognition begin with the loss of treaty fishing rights and conclude with the assertion that other Indian tribes are “taking steps to acquire rights to lands and treaty fishing rights of Plaintiffs.” Aside from treaty rights, the Samish identify no specific right or benefit they seek through federal recognition.2 Finally, as the majority describes more fully, the Samish have attempted to use this action to set aside a prior adverse determination of the fishing rights issue.

Furthermore, the majority all but concedes that this litigation closely relates to fishing rights when it acknowledges that, should the Samish gain federal recognition, “the next step would be to assert fishing rights as well.” This expectation belies any notion that, from a practical perspective, this action is distinct from the treaty fishing rights issue. Rather, the progression from federal recognition to fishing rights is both predictable and logical because of the clear similarity of the factual issues underlying each.

Among the prerequisites for federal recognition of an Indian tribe is “establishfing] that the petitioner has maintained tribal political influence or other authority over its members as an autonomous entity throughout history until the present.” 25 C.F.R. § 83.7(c). Although this is only one of numerous criteria, it, like the others, is mandatory' — a necessary condition for federal recognition. In contrast, recognition of treaty rights requires “a single necessary and sufficient condition.” United States v. Washington, 641 F.2d 1368, 1372 (9th Cir.1981) (“Washington II”), cert. denied, 454 U.S. 1143, 102 S.Ct. 1001, 71 L.Ed.2d 294 (1982). “[T]he group must have maintained an organized tribal structure.” Id. The majority acknowledges that these two inquiries are “similar.”

Beyond mere similarity, however, I would suggest that the two inquiries are indistinguishable; for the Samish or any other tribe descended from a treaty-signer, federal recognition is tantamount to acknowledgement *981by the federal government of tribal entitlement to treaty rights. The majority notes that federal recognition is not a precondition to receiving treaty rights. That observation is accurate but not particularly significant. It simply reflects the fact that federal recognition entails satisfaction of multiple criteria while treaty rights entitlement involves but one. The majority also states that a tribe need not-assert treaty rights to gain federal recognition. That is also true — as far as it goes. But again, it is wholly irrelevant.Tribes may choose to forego treaty rights, or they may have no treaty rights to claim because they are not descended from signatories of treaties; still, they are free to seek and receive federal recognition. We know, however, that the Samish fall within neither category.

The question of most relevance here is whether federal recognition necessarily qualifies for treaty rights a tribe that claims them. The answer is apparent. If the single necessary and sufficient criterion for treaty rights is also a necessary condition for federal recognition, then achieving the latter necessarily satisfies the single qualification for the former. This is a logical calculus of general applicability. Thus, a tribe seeking entitlement to treaty rights may well decide, as a first step, to obtain federal recognition.

For the Samish, however, there is an even more specific reason why pursuit of federal recognition must seem a logical precursor to the reassertion of their entitlement to treaty fishing rights. In 1981, reviewing the rejection of the claims of several tribes, including the Samish, as successors to signers of the Treaty of Point Elliott, we noted that the factors relied upon by the district court in addressing the tribes’ claims seemed to depend heavily — and wrongly — upon federal nonreeognition of the claiming tribes. See Washington II, 641 F.2d at 1372. By divided vote, we nonetheless upheld the district court’s rejection of the tribes’ claims. One member of the court, in dissent, remarked that “[i]t seems evident ... that the ‘attributes of sovereignty’ found to be lacking in the Samish Tribe are those arising from federal recognition.” Id. at 1375 (Canby, J., dissenting).

Both the general comments in the Washington II majority opinion and the dissent’s specific observation as to the Samish would seem positive invitations to achieve federal recognition first, and then to seek reconsideration of their entitlement to Point Elliott fishing rights. This specific incentive, coupled with the general, logical link between tribal recognition and treaty rights, demonstrates the practical and plain junction between the ease before us and the issue of fishing rights under the 1855 treaty. In light of the general principles of liberality and practicality, the Tulalip Tribes’ interest in intervention is manifest.

Ill

The majority concludes that the district court properly denied intervention because recognition does not “self-execute” treaty rights claims, and because the Samish will have to relitigate treaty rights in separate litigation challenging the prior adverse determination of the issue. This technical — and technically accurate — procedural separation cannot support the denial of intervention.

Possible stare decisis effects alone may warrant intervention of right.3 See String-fellow, 783 F.2d at 826; see also Oregon, 839 F.2d at 638. Thus, our precedent requires us to look to the practical effect of factual or legal determinations in the current litigation upon possible future litigation in which the potential intervenor has an interest. Under the revised Rule 24, the technical inapplicability of the principles of claim or issue preclusion does not prevent intervention; the potential intervenor’s interest in avoiding stare decisis — a species of practical preclusion — suffices to create a right to intervene. See Smith v. Pangilinan, 651 F.2d 1320, 1325 *982(9th Cir.1981); cf. McGough, 967 F.2d at 1396 (reversing denial of intervention on grounds of stare decisis without reaching applicability of preclusion principles). As described above, the factual determinations underlying federal recognition include the single determination that is necessary to a finding of entitlement to treaty fishing rights.

It is true, as the majority points out, that after the grant of partial summary judgment, the remaining issues in this case apparently involve only alleged defects in the administrative process that resulted in the denial of federal recognition to the Samish. Even assuming — a somewhat dubious assumption— that the Tulalip Tribes’ interest is properly assessed under the assumption that the litigation will always be so limited, the district court should have granted intervention. Cf. Sagebrush Rebellion, Inc. v. Watt, 713 F.2d 525, 528 (9th Cir.1983) (rejecting “novel proposition that the intervenor’s interest ... [is] measured in relation to the particular issue before the court at the time of the motion and not in relation ‘to the subject of the action’ as provided in Rule 24”).

The Tulalip Tribes have an obvious interest in protecting from reconsideration the previous determination of the Bureau of Indian Affairs (BIA). Whether we call it “stare decisis,” “comity,” or — most appropriate in this case — “administrative deference,” the right of intervention recognizes the 'practical future effect of contemporary determinations. Cf. International Union v. Scofield, 382 U.S. 205, 213, 86 S.Ct. 373, 379, 15 L.Ed.2d 272 (1965) (recognizing intervenor interest in avoiding future deference whether “as a matter of stare decisis or comity”). As a practical matter, if the BIA reconsiders its earlier decision, granting federal recognition to the Samish, the agency’s determination that the Samish have “maintained tribal political influence or other authority,” 25 C.F.R. § 83.7(c), will undoubtedly carry great weight in any judicial reconsideration of Samish entitlement to treaty fishing rights. Consequently, the Tulalip Tribes have a strong interest in seeing that the BIA not be required to reconsider its prior determination. The majority, relying on a technical legal distinction between this action and possible future action regarding treaty fishing rights, ignores this obvious practical interest of the Tulalip Tribes. Their opinion certainly does not give a liberal construction to the intervention rule.

IV

Because Rule 24 and our precedent mandate recognition of the Tulalip Tribes’ interest in opposing reconsideration of Samish eligibility for federal recognition, I would reverse the denial of intervention. I respectfully dissent.

. Some of the considerations taken up by the majority arc p-obably more appropriately classified as "practical impairment” concerns. However, since the majority affirms the district court on the basis of the second intervention factor rather than the third, I will focus my discussion upon "interest." As should be apparent from the discussion of stare decisis below, I believe that the Tulalip Tribes satisfy the "impairment” factor as well.

. While I agree with the majority that the Samish would acquire certain “rewards” that flow from federal recognition, I think that a fair reading of the complaint as a whole makes it eminently clear that the Samish's primary purpose in instituting the administrative proceeding was to pursue their fishing rights claim.

. I here address "stare decisis” in a manner different from the majority’s treatment. Our cases have treated stare decisis in the intervention context as referring to the possible effect of the litigation in which the applicant seeks to intervene upon future litigation. See, e.g., Oregon, 839 F.2d at 638 (determinations "will have a persuasive stare decisis effect in any parallel or subsequent litigation"). This is how I employ the term. The majority treats stare decisis as referring to the protection of the effects of past litigation on the current litigation.