Motion to Intervene, Confederated Tribes of the Chehalis Reservation et al. v. Mnuchin, No. 1:20-cv-01002 (D.D.C.), Doc. 43 (April 30, 2020)

Summary

Motion of Ahtna, Inc. to Intervene as Defendant and Incorporated Memorandum of Law in the consolidated Confederated Tribes of the Chehalis Reservation et al. v. Steven Mnuchin, Secretary, United States Department of the Treasury, No. 1:20-cv-01002-APM, filed 04/30/20. Ahtna moves to intervene as of right under Federal Rule of Civil Procedure 24, citing its interest in the Title V distribution of CARES Act funds, for which it says it is eligible. The motion states that all three groups of Plaintiffs oppose it and the Secretary takes no position. It describes a special dividend to shareholders and 5,000 hand sanitizer units supplied to communities. Michael J. O'Leary signs.

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“Motion to Intervene, Confederated Tribes of the Chehalis Reservation et al. v. Mnuchin, No. 1:20-cv-01002 (D.D.C.), Doc. 43 (April 30, 2020).” Original at storage.courtlistener.com. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/motion-to-intervene-confederated-tribes-of-the-chehalis-reservation-et-231f6aba90/, SHA-256 80f89df49a04b650211b5c4683875d035f39902d9f8213849cdd8e4aea4a5764.

Full text

Case 1:20-cv-01002-APM Document 43 Filed 04/30/20 Page 1 of 15

UNITED STATES DISTRICT COURT
DISTRICT OF COLUMBIA

CONFEDERATED TRIBES OF THE
CHEHALIS RESERVATION et al.,

Plaintiffs, Consolidated Civil Action No:
v. 1:20-cv-01002-APM

STEVEN MNUCHIN, SECRETARY,
UNITED STATES DEPARTMENT OF
THE TREASURY,

Defendant.

MOTION OF AHTNA, INC. TO INTERVENE AS DEFENDANT AND
INCORPORATED MEMORANDUM OF LAW1

Pursuant to Federal Rule of Civil Procedure 24 and Local Civil Rule 7(j), Ahtna, Inc.

(“Ahtna”) moves to intervene as of right as a defendant in this action. Ahtna has a significant

protectable “interest related to the property or transactions that is the subject of the action”—

specifically, the distribution of funds by the U.S. Department of the Treasury under Title V of the

Coronavirus Aid, Relief, and Economic Security (“CARES”) Act, H.R. 748 for which Ahtna is

eligible—and “disposing of th[is] action may as a practical matter impair or impede” Ahtna’s

“ability to protect its interest, unless existing parties adequately represent that interest.” Fed. R.

Civ. P. 24(a). Here, Ahtna’s interests are not adequately represented by any of the existing parties.

The Government’s obligation is to represent the interests of the general public. This

1
There are three groups of Plaintiffs in this consolidated action: (1) eleven tribes in the original action, Confederated
Tribes of the Chehalis Reservation et al., v. Mnuchin, No. 1:20-cv-01002-APM (D.D.C.) (“Chehalis Plaintiffs”); (2)
six additional tribes in the second filed action, Cheyenne River Sioux Tribe et al., v. Mnuchin, No. 1:20-cv-01002-
APM (D.D.C.) (“Sioux Plaintiffs”); and (3) an additional tribe in the last action, Ute Indian Tribe of the Uintah and
Ouray Indian Reservation v. Mnuchin, No. 1:20-cv-010170-APM (D.D.C.) (“Ute Plaintiff”). Pursuant to Local Civil
Rule 7(m), on April 28 and 29, undersigned counsel conferred with counsel for all three groups of Plaintiffs and
counsel for the Government. All three groups of Plaintiffs oppose Ahtna’s request to intervene. Defendant, the
Secretary of the Treasury, takes no position with respect to this motion.

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responsibility differs from that of Ahtna, which is obligated to represent and protect the economic

and legal interests of the Ahtna people. Ahtna may wish to advance arguments or pursue strategies

that would not be advanced or pursued by the Government, and Ahtna will be able to contribute

factual information that may not be readily accessible to the Government. See Declaration of Ken

Johns at ¶¶ 3-4, attached as Exhibit A (“Each of our Tribes is represented on the Ahtna Board to

provide a voice for those living in our 8 Ahtna villages and they hold Ahtna, Incorporated

accountable to fulfill our mission to those living today and the generations to come. Although

Ahtna is a corporation, it is impossible to unravel the ties between Ahtna and its tribes. We are the

same people. The same blood runs through our veins.”).

Ahtna, like all ANCSA corporations, has a Congressional mandate to support Alaska

Native shareholders economically, culturally, and socially. Ahtna fulfills this mandate by playing

a foundational role in the socio-economic health and welfare of the Ahtna people. Id. at ¶¶ 6-17.

Ahtna also has a direct interest in the resolution of legal issues raised by Plaintiffs that could

potentially impact Ahtna’s access to federal benefits and programs currently provided to Ahtna

based on its status, including contracts issued under the Indian Self-Determination and Education

Assistance Act (“ISDEAA”), 25 U.S.C. § 5301 et seq. See id. at ¶ 17 (noting that Ahtna currently

has a “638 contract”).

Plaintiffs’ claims threaten Ahtna’s substantial interests by seeking an order from the court

that would prohibit Ahtna from receiving federal aid to address the devastation caused by the

COVID-19 pandemic. Id. at ¶ 5 (“Ahtna intends to use any money it receives from the Corona

Virus Relief Fund directly for the benefit of our tribes. This money will be used to enhance services

we currently provide to our tribes and help supplement protective measures they have already put

in place.”). Ahtna is currently mobilizing resources to help the Ahtna people confront these

challenging times. It has, for example, issued a special dividend to its shareholders to offset the

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loss of income and supplied its communities with 5,000 hand sanitizer units. Id. at ¶¶ 13-15 (“I

personally heard from some our shareholders that this money was a ‘life-saver’ and ‘lifted a huge

burden’ as they were not sure how they were going to pay rent next month or buy groceries due to

lack of wages.”). Working in coordination with its tribes, Ahtna plans to do much more to help the

Ahtna people. Id. at ¶¶ 6-15. In short, if Plaintiffs prevail, Ahtna will be denied the critical funds

necessary to help Alaska Natives effectively respond to this pandemic.

Finally, Ahtna’s motion is timely filed. The first case filed in this consolidated action is

less than two weeks old. Defendant has not yet filed responsive pleadings, and Ahtna’s

intervention will not delay or impede resolution of this matter. To the contrary, Ahtna’s

intervention will enable the Court to be more fully advised both on the legal and factual issues

raised by the litigation.

Alternatively, the Court should exercise its discretion and grant Ahtna permissive

intervention under Federal Rule 24(b). Ahtna’s defenses and arguments have questions in

common with the main action. In addition, Ahtna’s intervention will not unduly delay or otherwise

prejudice the adjudication of the rights of the original parties.

For the reasons outlined below and in the accompanying Supplemental Declaration of Ken

Johns (Exhibit A), Ahtna respectfully requests the Court grant this motion. Pursuant to Federal

Rule 27(c) and Local Civil Rule 7(j), a copy of Ahtna’s proposed Answer to each of the three

complaints in this consolidated action are attached as Exhibits B, C, & D.

I. BACKGROUND

Ahtna, Inc. is an Alaska Native Regional Corporation (“ANCSA corporation”) created

pursuant to the Alaska Native Claims Settlement Act (“ANCSA”), 43 U.S.C. §§ 1601-1629.

Ahtna’s mission is the “[w]ise stewardship of Ahtna lands and responsible economic growth, for

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future generations of Ahtna people.”2 To this end, Ahtna represents the interests of its more than

2,000 Alaska Native shareholders and owns lands and resources located in eastern Alaska. Ahtna

is charged with advancing the interests of the Ahtna people, many of whom have limited incomes

and live in remote locations in rural Alaska. See Declaration of Ken Johns at ¶¶ 3-4.

In 1975, Congress passed the Indian Self-Determination and Education Assistance Act

(“ISDEAA”), originally Public Law 93-638, which had the goal of transferring federal programs

for Indian tribes out of federal control and into tribal control. In enacting the Act, Congress

outlined their purpose:

The Congress declares its commitment to the maintenance of the Federal
Government’s unique and continuing relationship with, and responsibility to,
individual Indian tribes and to the Indian people as a whole through the
establishment of a meaningful Indian self-determination policy which will permit
an orderly transition from the Federal domination of programs for, and services to,
Indians to effective and meaningful participation by the Indian people in the
planning, conduct, and administration of those programs and services. In
accordance with this policy, the United States is committed to supporting and
assisting Indian tribes in the development of strong and stable tribal governments,
capable of administering quality programs and developing the economies of their
respective communities.

25 U.S.C. § 5302(b).

Under ISDEEA, Indian tribes can obtain a contract—referred to as a “638” contract or

agreement—“to help Indian tribes assume responsibility for aid programs that benefit their

members.” Menominee Indian Tribe of Wis. v. United States, 136 S. Ct. 750, 753 (2016); 25 U.S.C.

§ 5321(a)(1). The ISDEAA defines “Indian tribes” to “mean[] any Indian tribe, band, nation, or

other organized group or community, including any Alaska Native village or regional or village

corporation as defined in or established pursuant to the Alaska Native Claims Settlement

Act (85 Stat. 688) [43 U.S.C. 1601 et seq.], which is recognized as eligible for the special

2
Mission, Vision, and Values, AHTNA, INC., https://www.ahtna.com/mission-vision-and-values/ (last accessed Apr.
22, 2020).

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programs and services provided by the United States to Indians because of their status as Indians.”

25 U.S.C. § 5304(e) (emphasis added).

Ahtna, like other ANCSA corporations, is eligible to receive 638 Contracts from the U.S.

Government and Ahtna, like other ANCSA corporations, currently holds a 638 Contract. See

Declaration of Ken Johns at ¶17. Although whether or not an ANCSA corporation has a 638

contract is not material to the legal determination of whether ANCSA corporations fit within the

definition of “Indian tribe” under Title V of the CARES Act, the existence of such contract awards

to ANCSA corporations demonstrates that they are presently “recognized as eligible for the special

programs and services provided by the United States to Indians because of their status as Indians.”

See 25 U.S.C. § 5304(e).3

Section 601(g)(1) of the CARES Act provides for the distribution of $8,000,000,000 in

relief funding relating to the COVID-19 pandemic to state, local and tribal governments and

defines “Indian tribe” to have the same meaning as provided in Section 4(e) of ISDEAA. The term

“Tribal government,” in turn, is broadly defined in the CARES Act as “the recognized governing

body of an Indian Tribe.’’ Section 601(g)(5). Accordingly, until April 17, 2020, Ahtna and other

ANCSA corporations anticipated they were eligible for relief funding allocated to Tribal

governments which was to be paid on or before April 26, 2020 consistent with the provisions of

the Act.

Commencing on April 17 and April 20, the various Plaintiffs in this consolidated action—

three separate groups of American Indian tribes from throughout the United States—filed

complaints for declaratory and injunctive relief and motions for a temporary restraining order

3
In Cook Inlet Native Ass’n v. Bowen, the Ninth Circuit recognized that because “[s]pecific reference to Alaska village
and regional corporations was added by amendment” to the ISDEAA definition of “Indian tribe” this “eligibility
clause” modified only the terms “any Indian tribe, band, nation, or other organized group or community,” and not the
specifically enumerated ANCSA corporations which were added later. 810 F.2d 1471, 1475 (9th Cir. 1987) (citing
120 Cong. Rec. 40242).

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claiming that ANCSA corporations, including Ahtna, were ineligible to receive any portion of

these relief funds. Given the exigency and uncertainty arising from the U.S. Department of the

Treasury’s failure to provide details regarding its intentions for the allocation of the funding, Ahtna

did not seek to intervene as a party. Instead, it sought leave to file an amicus brief outlining for

the Court the legal framework relating to ANCSA corporations and the statutory analysis

supporting the conclusion that they were eligible to receive relief funding under the CARES Act.

On April 27, 2020, this Court issued its Order and Memorandum Opinion granting in part and

denying in part Plaintiffs’ motions for a temporary restraining order. Dkts 36-37.

In its Memorandum Opinion, this Court stated that based on the current record “the extent

of actual 638 contracting with ANCs under ISDEAA is unclear” and the noted the counsel for the

United States was unable to provide clarity on the issue. Dkt. 36 at 5-6. The Court further

concluded that “[a]lthough BIA has long viewed ANCs as qualifying as ‘Indian tribes’ under

ISDEAA . . . there is scant evidence on the present record—in fact, none—that BIA or any other

federal agency has actually entered into a ‘self-determination contract,’ or 638 agreement, with an

[ANCSA corporation]” and observed that the United States’ “inability to identify any such current

or past agreement between a federal agency and an ANC is telling . . . and suggests that such

contracts are at least rare.” Id. at 29. In fact, such contracts are not rare in Alaska. Plaintiffs

Cheyenne River Sioux concede that ANCs satisfy the ISDEAA definition of an Indian tribe

(according to these Plaintiffs for “a limited purpose”) and that ANCs receive these contracts “to

ensure critical services are provided to Alaska Natives in regions where there are no actual tribal

governments[.]” Cheyenne Plaintiffs’ Reply in Support of Temporary Restraining Order and

Preliminary Injunction, at 5 (Dkt. 15 Case 1:20-cv-01059-APM). And Ahtna, as discussed above,

currently has one such contract. Declaration of Ken Johns at ¶¶ 17.

Not only do ANCSA corporations have many 638 contracts, but Congress has also enacted

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other laws outside of ISDEAA where it has used the ISDEAA definition of “Indian tribe,” or a

very similar formulation, and specifically indicated its intention was to ensure that benefits under

the statute were afforded to ANCSA corporations. For example, in December 2018, Congress

amended the Federal Power Act, 16 U.S.C. § 800(a), to define “Indian tribe” to have “the meaning

given the term in section 4 of the Indian Self-Determination and Education Assistance Act (25

U.S.C. 5304),” noting the “purpose of this section is to establish a biomass demonstration project

for federally recognized Indian tribes and Alaska Native corporations to promote biomass energy

production.” Public Law 115-325 (December 18, 2018) §§ 201-202 (emphasis added). It is not

unusual for Congress to define an “Indian tribe” to include ANCSA corporations so that ANCs

can qualify for certain programs or benefits, even though ANCSA corporations are not sovereign

governments included on the Secretary’s list of federally recognized tribes.

Nevertheless, in rejecting the Government’s argument that Congress intended to include

ANCSA corporations in Title V of the CARES Act, the Court cited to deficiencies in the

presentation of this factual and statutory information:

This real-world treatment of ANCs by federal agencies under ISDEAA is
informative. It tells the court, even if an ANC can be potentially treated as an
‘Indian tribe’ under ISDEAA, they rarely are. And that infrequent treatment
prevents the court from concluding at this stage that, by using ISDEAA’s definition
of ‘Indian tribe’ in the CARES Act, Congress necessarily signaled its intent to treat
ANCs and federally recognized tribes as equals for purposes of Title V funding
eligibility.

Dkt. 36 at 29-30 (emphasis added).

Clearly, information relating to the real-world treatment of ANCSA corporations was

material to the Court’s resolution of the pending motions and its view of the significance of

Congress’ choice to choose a definition of Indian tribes that explicitly included ANCSA

corporations—instead of the alternative definitions in the U.S. Code or sources such as the Federal

Tribal Act list that do not. As an ANCSA corporation, Ahtna is well positioned to present such

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information and has an interest separate from the Government in doing so because it relates directly

to its economic and legal interests.

But more importantly, the Ahtna region, like other Alaska Native communities, has also

faced significant hardships during the current COVID-19 global pandemic. See Declaration of

Ken Johns at ¶¶ 6, 15. Section 601(d) was designed to allow “Tribal governments” to use relief

funds to cover costs that: “(1) are necessary expenditures incurred due to the public health

emergency with respect to the Coronavirus Disease 2019 (COVID–19); (2) were not accounted

for in the budget most recently approved as of the date of enactment of this section for the State or

government; and (3) were incurred during the period that begins on March 1, 2020, and ends on

December 30, 2020.” In interpreting the scope of this provision, the U.S. Treasury Department

has determined that ANCSA corporations like Ahtna are eligible to receive funds to cover needs

within a number of different categories: (1) “medical expenses”; (2) “public health expenses”; (3)

“payroll expenses for public safety, public health, health care, humans services, and similar

employees whose services are substantially dedicated to mitigating or responding to the COVID-

19 public health emergency”; (4) “[e]xpenses to facilitate compliance with COVID-19-related

public health measures”; and (5) “[e]xpenses associated with the provision of economic support in

connection with the COVID-19 public health emergency.” U.S. Department of the Treasury,

“Coronavirus Relief Fund Guidance for State, Territorial, Local, and Tribal Governments,” April

22, 2020, available at https://home.treasury.gov/system/files/136/Coronavirus-Relief-Fund-

Guidance-for-State-Territorial-Local-and-Tribal-Governments.pdf.

Ahtna has already provided economic relief and incurred costs to address public health and

Ahtna intends to do much more with the funds provided by the federal government to help Alaska

Natives recover from this pandemic. See Declaration of Ken Johns at ¶¶ 6-17. In short, the U.S.

Treasury Department reasonably determined that Ahtna and other ANCSA corporations are

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eligible to receive relief funding under Title V of the CARES Act based on Congress’ clearly

expressed intent.4 Plaintiffs, unfortunately, filed this action to prevent Ahtna, and other ANCSA

corporations, from receiving federal funds necessary to provide critical and essential services and

aid to Alaska Natives.

II. ANALYSIS

A. Ahtna is Entitled to Intervene as a Matter of Right

Ahtna should be allowed to intervene as a matter of right to protect its interest in critically

needed funds under Title V of the CARES Act. Rule 24(a)(2) permits parties to intervene in a

pending action if (1) the motion to intervene is timely; (2) the movant “claims an interest relating

to the property or transaction that is the subject of the action”; (3) the movant “is so situated that

disposition of the action may as a practical matter impair or impede the movant’s ability to protect

its interest”; and (4) the movant’s interest is not adequately represented by existing parties. Fed.

R. Civ. P. 24(a); accord Fund for Animals, Inc. v. Norton, 322 F.3d 728, 731 (D.C. Cir. 2003)

(quoting Mova Pharm. Corp. v. Shalala, 140 F.3d 1060, 1074 (D.C. Cir. 1998)). Additionally, the

proposed intervenor must demonstrate they have standing under Article III of the U.S.

Constitution. Assoc. Dog Clubs of N.Y. State v. Vilsack, 44 F. Supp. 3d 1, 3-4 (D.D.C. 2014).

“[T]he D.C. Circuit has taken a liberal approach to intervention.” The Wilderness Soc. v. Babbitt,

104 F. Supp. 2d 10, 18 (D.D.C. 2000) (citing NRDC v. Costle, 561 F.2d 904, 910-11 (D.C. Cir.

1977)).

4
See Defendant’s Consolidated Opposition to Plaintiffs’ Motion for Temporary Restraining Order and Preliminary
Injunction, Dkt. 21, at 7; Coronavirus Relief Fund Payments to Tribal Governments, April 23, 2020 (“After
consultation with the Department of the Interior, Treasury has concluded that Alaska Native regional and village
corporations as defined in or established pursuant to the Alaska Native Claims Settlement Act are eligible to receive
payments from the Fund in the amounts to be determined by the Secretary of the Treasury.”), Coronavirus Relief Fund
Payments to Tribal Governments, April 23, 2020, available at
https://home.treasury.gov/system/files/136/Coronavirus-Relief-Fund-Payments-to-Tribal-Governments.pdf.

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1. Ahtna Has Standing to Intervene in This Action

An intervenor must suffer an “injury in fact” to have standing under Article III: “‘an

invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or

imminent, not conjectural or hypothetical.’” Vilsack, 44 F. Supp. 3d at 4 (quoting Lujan v.

Defenders of Wildlife, 560 U.S. 555, 560-61 (1992)). “Harm caused to an organization’s programs

by the invalidation of a rule is no less concrete or demonstrable than the same harm caused by an

agency’s failure to enforce a rule.” Id. at 5. Additionally, standing requires the injury to be

traceable to action by a party before the court, and that a favorable decision is likely to redress the

injury. Id. at 4. Ahtna has already suffered injury from the Court’s decision on the motion for a

temporary restraining order because it will not receive any relief funds in the initial distribution of

Title V relief funds.5 Because of the preliminary injunction, Ahtna will not be able to provide the

services and economic response needed to alleviate the hardship the Ahtna people are currently

experiencing as a result of this pandemic. And if Plaintiffs ultimately prevail in this action and

invalidate the Treasury Department’s determination with respect to Title V of the CARES Act,

Ahtna will never receive these critical relief funds and will not be able to provide critical services

and economic relief to Alaska Natives living within its region. Thus, Ahtna, and the Alaska

Natives that it represents, will clearly suffer concrete injury during this global pandemic.

2. Ahtna’s Motion Is Timely

Ahtna’s request for intervention is timely—within two weeks of the first complaint filed in

this consolidated action—and will not cause undue delay or disruption at this early stage of the

proceeding. See Vilsack, 44 F. Supp. 3d at 5-6 (holding that intervention within fourteen days was

“clearly timely”); Karsner v. Lothian, 532 F. 3d 876, 886 (D.C. Cir. 2008) (finding motion timely

5
To the extent Plaintiffs oppose Ahtna’s motion because the U.S. Department of the Treasury has not announced its
allocations, such a claim is unavailing in the context of this action. Plaintiffs, who similarly have not received an
official allocation of funds, have an identical claim of standing basedon their eligibility for such funds.

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where petitioner sought intervention less than one month after intervenor’s interest in the dispute

ripened).6 The “timeliness requirement was not designed to penalize prospective intervenors for

failing to act promptly.” Ute Indian Tribe of Uintah and Ouray Reservation v. U.S. Dep’t of the

Interior, No. 18-cv-00547, 2020 WL 1465886, at *1 (D.D.C. Feb. 5, 2020) (citing City of

Bloomington v. Westinghouse Elec. Corp., 824 F.2d 531, 535 (7th Cir. 1987)). “Rather, the

‘critical factor is whether any delay in moving for intervention will prejudice the existing parties

to the case.’” Id. (citation omitted).

Ahtna seeks intervention now because of the possibility that the U.S. Government will not

appeal the Court’s April 27 Order or otherwise effectively litigate the merits of the request for a

permanent injunction which directly impacts Ahtna’s economic and legal interests. If intervention

is granted, Ahtna will: (i) participate in the action on the schedule that will be established for the

existing parties; and (ii) avoid unnecessary delays or duplication of efforts in areas satisfactorily

addressed and represented by the Government, to the extent possible. Thus, Ahtna’s intervention

will cause no delay or impose any prejudice on any of the other parties.

3. Ahtna Is an Interested Party

In the D.C. Circuit, demonstrating Article III standing also satisfies Rule 24(a)(2)

requirement that a movant claim an interest in the property or transaction that is the subject of the

lawsuit. Vilsack, 44 F. Supp. 3d at 6. The Treasury Department determined that all ANCSA

corporations—including Ahtna—were eligible for relief funding under Title V of the CARES Act.

6
Plaintiffs filed the first complaint in this action on April 17, 2020, and their motions for a temporary restraining order
commenced on April 20. Briefing was initially scheduled for April 21-22 (before being delayed by a day) and the
first hearing was held on April 24. Given the exigency and U.S. Treasury Department’s delay in stating its agency
determination publicly, Ahtna sought leave to file an amicus brief to assist the Court in resolving the claims raised by
Plaintiffs instead of seeking to intervene. However, in light of the Court’s decision and its reasoning including a
clearly expressed need for additional information on the real-world treatment of ANCSA corporations under the
ISDEA, Ahtna is appropriate at this time. Indeed, the D.C. Circuit has even recognized that intervention may be
timely after judgment has been entered such as where “the legally relevant purpose of the[] motion was simply to
enable [the intevenor] to prosecute an appeal.” Smoke v. Norton, 252 F. 3d 468, 471 (D.C. Cir. 2001).

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The Court’s decision in this case will undoubtedly impact Ahtna’s legal rights and economic

interests. If a permanent injunction were to issue in this case, it would have direct, adverse effects

on Ahtna’s ability to meaningfully respond to this pandemic and to protect its people and region

from economic devastation that COVID-19 is leaving in its wake. In addition, a permanent

injunction would also mean that Ahtna’s Alaska Native shareholders who are not members of a

federally recognized tribe will not be entitled for the benefits established under the CARES Act.

Finally, an order granting such injunction could also impact Ahtna’s eligibility for dozens of

federal programs and benefits.

In sum, Ahtna meets the test for Article III standing and satisfies the second prong of the

test for intervention of right. See Deutsche Bank Nat’l Trust. Co. v. Fed. Deposit Insurance Corp.,

717 F.3d 189, 193 (D.C. Cir. 2013) (“[Would-be intervenors] point to their economic interest in

the receivership funds as a legally protected interest. That much is clearly correct.”); see also

Friends of Animals v. Kempthorne, 452 F. Supp. 2d 64, 69 (D.D.C. 2006) (proposed intervenor

needs only an interest in the litigation, not a cause of action).

4. The Disposition of This Action Could Impair Ahtna’s Ability to
Protect Its Interests

For all the reasons previously outlined, entering a declaratory judgment with respect to

ANCSA corporations’ eligibility for relief funds under Title V of the CARES Act and enjoining

the Treasury Department’s determination with respect to that eligibility would undoubtedly

impede Ahtna’s legal and economic interests with respect the current pandemic by denying it

critical relief funding and potentially negatively impact it with respect to broader legal issues.

Thus, the third prong of the test for intervention is met. See Vilsack, 44 F. Supp. 3d at 6.

5. Ahtna’s Interests Are Not Adequately Represented by Other Parties

To show a movant’s interests are not adequately represented or protected by other parties,

an intervenor “need only show that representation of his interests ‘may be inadequate’ . . .” Dimond

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v. Dist. of Columbia, 792 F.2d 179, 192 (D.C. Cir. 1986). The D.C. Circuit has described this bar

as “low” and a movant “ordinarily should be allowed to intervene unless it is clear that the party

will provide adequate representation.” Crossroads Grassroots Policy Strategies v. Fed. Election

Comm’n, 788 F.3d 312, 321 (D.C. Cir. 2015) (citing United States v. Am. Tel. & Tel. Co., 642 F.2d

1285, 1293 (D.C. Cir. 1980). In this case, neither the Government nor the Plaintiffs represent the

interests of Ahtna. Ahtna has a direct legal and economic interest in the relief funds at issue. “The

D.C. Circuit has ‘look[ed] skeptically on government entities serving as adequate advocates for

private parties.’” Alphapointe v. Dep’t of Veterans Affairs, No. 19-cv-02465, 2019 WL 7290853,

at *1 (D.D.C. Aug. 26. 2019) (quoting Crossroads, 788 F.3d at 321. “That is particularly true

when the private-party intervenor asserts a ‘financial stake in the outcome’ of the suit.” Id. (citing

Dimond, 792 F.2d at 192.

Here, Ahtna has both economic and legal interests in the outcome of this action that the

Government does not share. As a result, the Treasury Department may not adequately represent

Ahtna’s divergent economic and legal interests in defending the challenged agency action. See

Crossroads, 788 F.3d at 321.

B. In the Alternative, Ahtna Seeks Permissive Intervention

Should the Court conclude that Ahtna does not have a right of intervention under Rule

24(a), it alternatively moves for permissive intervention under Rule 24(b) which allows the Court

to grant intervention where the intervenor makes a timely motion and “has a claim or defense that

shares with the main action a common question of law or fact.” Fed. R. Civ. P. 24(b)(1)(B).

“[P]ermissive intervention is an inherently discretionary enterprise” for the Court. EEOC

v. Nat’l Children’s Ctr., Inc., 146 F.3d 1042, 1046 (D.C. Cir. 1998). However, the putative

intervenor must ordinarily present: “(1) an independent ground for subject matter jurisdiction; (2)

a timely motion; and (3) a claim or defense that has a question of law or fact in common with the

13
Case 1:20-cv-01002-APM Document 43 Filed 04/30/20 Page 14 of 15

main action.” Id. Like intervention of right, permissive intervention should be granted liberally.

Nat’l Children’s Ctr., Inc., 146 F.3d at 1045-46 (permissive intervention granted where intervenor

has substantial interest at stake even if no common claim or defense claimed; “flexible

interpretations” of rule appropriate in favor of intervention); Nuesse v. Camp, 385 F.2d 694, 704-

05 (D.C. Cir. 1967) (D.C. Circuit eschews strict reading of rules to advance policy favoring liberal

allowance of permissive intervention).The Court “must consider whether the [requested]

intervention will unduly delay or prejudice the adjudication of the original parties’ rights.” Fed. R.

Civ. P. 24(b)(3).

Ahtna meets each of these requirements. First, the Court has subject matter jurisdiction

over Ahtna’s defenses and arguments as they all arise under or relate to federal law under the

Administrative Procedures Act or with respect to the interpretation of Title V of the CARES Act.

Second, for the reasons set forth above, this motion is timely and will not unduly delay or prejudice

any party. Finally, Ahtna’s anticipated defenses and arguments are premised on the same issues

of fact and law at issue in this proceeding—namely the U.S. Department of the Treasury’s

determination that ANCSA corporations were eligible to receive relief funds under Title because

they are “Indian tribes” under the Act See In re Polar Bear Endangered Species Act Listing and

4(d) Rule Litigation, 794 F. Supp. 2d 65, 78 (D.D.C. 2011) (observing that multiple oil companies

were permitted to intervene as defendants in support of U.S. Fish and Wildlife Service’s decision

not to list polar bears as endangered). Additionally, should the Court require Ahtna to demonstrate

standing for purposes of permissive intervention, Ahtna meets that standard as well for the reasons

set forth above and because any disposition of this action could impact its economic and legal

rights.7

7
“It remains . . . an open question in this [C]ircuit whether Article III standing is required for permissive intervention.”
Defs. of Wildlife v. Perciasepe, 714 F.3d 1317, 1327 (D.C. Cir. 2013) (first alteration in original) (quoting In re
Endangered Species Act Section 4 Litig., 704 F.3d 972, 980 (D.C. Cir. 2013)).

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Case 1:20-cv-01002-APM Document 43 Filed 04/30/20 Page 15 of 15

CONCLUSION

For all the foregoing reasons, Ahtna respectfully requests that the Court grant its motion to

intervene as a matter of right under Federal Rule of Civil Procedure 24(a)(2), or alternatively, for

permissive intervention under Rule 24(b).

Dated: April 30, 2020 Respectfully submitted,

/s/ Michael J. O’Leary
Michael J. O’Leary, DC Bar No. 1014610
HOLLAND & HART LLP
901 K Street NW, Suite 850
Washington, D.C., 20001
(202) 654-6922
mjoleary@hollandhart.com

Jonathan Katchen (admitted pro hac vice)
HOLLAND & HART LLP
1029 W.3rd Avenue, Suite 550
Anchorage, AK 99501
(907) 865-2606
jwkatchen@hollandhart.com

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing was electronically filed with

the Clerk of the Court using the CM/ECF system, which will send notification of such filing to

all counsel of record.

/s/ Michael J. O’Leary
Michael J. O’Leary

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