Motion to Intervene, Confederated Tribes of the Chehalis Reservation et al. v. Mnuchin, No. 1:20-cv-01002 (D.D.C.), Doc. 45 (May 5, 2020)

Summary

Motion of Alaska Native Village Corporation Association, Inc. and Association of ANCSA Regional Corporation Presidents/CEO's, Inc. to Intervene and Memorandum of Points and Authorities in Support, filed 05/05/20 in the consolidated Confederated Tribes of the Chehalis Reservation et al. v. Steven Mnuchin cases, No. 1:20-cv-1002-APM. The ANC Intervenor-Defendants move under Federal Rule of Civil Procedure 24 and Local Civil Rule 7(j) to intervene as a defendant to protect their interest in Title V CARES Act funds for "Tribal governments." They state that Plaintiffs seek to block Alaska Native village and regional corporations from receiving Coronavirus Relief Fund payments. Daniel W. Wolff signs.

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       Case 1:20-cv-01002-APM Document 45 Filed 05/05/20 Page 1 of 20



                    IN THE UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF COLUMBIA

CONFEDERATED TRIBES OF THE
CHEHALIS RESERVATION, et al.,

                   Plaintiffs,

      v.                                      Case No. 1:20-cv-1002-APM

STEVEN MNUCHIN, in his official capacity as
Secretary of the Treasury,

                   Defendant.

CHEYENNE RIVER SIOUX TRIBE et al.,

                   Plaintiffs,

      v.
                                              Case No. 1:20-cv-1059-APM
STEVEN MNUCHIN, in his official capacity as
Secretary of the Treasury,

                   Defendant.

UTE TRIBE OF THE UINTAH AND OURAY
RESERVATION,

                   Plaintiff,

      v.                                      Case No. 1:20-cv-1070-APM
STEVEN MNUCHIN, in his official capacity as
Secretary of the Treasury,

                   Defendant.


 MOTION OF ALASKA NATIVE VILLAGE CORPORATION ASSOCIATION, INC.
AND ASSOCIATION OF ANCSA REGIONAL CORPORATION PRESIDENTS/CEO’S,
 INC. TO INTERVENE AND MEMORANDUM OF POINTS AND AUTHORITIES IN
                 SUPPORT OF MOTION TO INTERVENE
         Case 1:20-cv-01002-APM Document 45 Filed 05/05/20 Page 2 of 20



       Pursuant to Federal Rule of Civil Procedure 24 and Local Civil Rule 7(j), the Alaska

Native Village Corporation Association, Inc. (“ANVCA”) and Association of ANCSA Regional

Corporation Presidents/CEO’s, Inc. (“ARA”)1 (collectively, the “ANC Intervenor-Defendants”)

respectfully move to intervene as a defendant in the above-captioned consolidated cases to

protect their interest in federal relief funding appropriated for “Tribal governments” under Title

V of the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”). Pub. L. No. 116-

136, 134 Stat. 281 (2020). In these consolidated cases, Plaintiffs are challenging the Secretary of

the Treasury’s interpretation of the CARES Act, and they seek to block Alaska Native village

and regional corporations (together, “ANCs”) from receiving payments from the Coronavirus

Relief Fund established by the CARES Act.

       The ANC Intervenor-Defendants seek leave to intervene in this action as a matter of right

pursuant to Federal Rule of Civil Procedure 24(a)(2). This motion is timely; the ANC Intervenor-

Defendants’ members have a significant protectable interest in receiving coronavirus relief funds

that are the subject of these consolidated cases; those interests may as a practical matter be

impaired or impeded by the disposition of these cases in Plaintiffs’ favor; and the ANC

Intervenor-Defendants’ interests are not adequately represented by existing parties.

Alternatively, the ANC Intervenor-Defendants seek permissive intervention under Federal Rule

of Civil Procedure 24(b). This Court has an independent ground for jurisdiction under 28 U.S.C.

§ 1367; this motion is timely; and the defenses the ANC Intervenor-Defendants seek to raise

have questions of law and fact in common with Plaintiffs’ claims.

       Counsel for the ANC Intervenor-Defendants conferred with counsel for Plaintiffs and

Defendant. Plaintiffs oppose this motion. Defendant takes no position on the motion.

1
 Association of ANCSA Regional Corporation Presidents/CEO’s, Inc. is commonly referred to
as ANCSA Regional Association or “ARA.”
         Case 1:20-cv-01002-APM Document 45 Filed 05/05/20 Page 3 of 20



       Accordingly, for the reasons set forth below, the ANC Intervenor-Defendants request that

this Court grant them leave to intervene under Federal Rule of Civil Procedure 24.

                           INTRODUCTION AND BACKGROUND

       On March 27, 2020, Congress enacted the CARES Act, which appropriated $150 billion

to “States, Tribal governments, and units of local government” to help those entities respond to

the current public health emergency. Eight billion dollars of that amount was specifically

reserved for payments to “Tribal governments,” which the law defined as “the recognized

governing body of an Indian Tribe,” 42 U.S.C. § 801(g)(5), and which the ANC Intervenor-

Defendants understood to include ANCs. The Secretary of the Treasury (“Secretary”) confirmed

this interpretation on April 23, 2020, after consultation with the Department of the Interior,

thereby reaffirming that the ANCs were eligible for relief funding under the CARES Act. See

U.S. TREASURY DEP’T, CORONAVIRUS RELIEF FUND PAYMENTS TO TRIBAL

GOVERNMENTS (Apr. 23, 2020), available at

https://home.treasury.gov/system/files/136/Coronavirus-Relief-Fund-Payments-to-Tribal-

Governments.pdf (the “Treasury Guidance”).

       Plaintiffs are a consortium of federally recognized tribes which object to ANCs receiving

relief funds under the CARES Act, ostensibly because it would reduce the amount of money to

which Plaintiffs believe they would otherwise be entitled. Plaintiffs filed three lawsuits, which

were consolidated into this action, alleging that the Secretary’s interpretation of the CARES Act

is arbitrary and capricious. They also sought a preliminary injunction enjoining the Secretary

from disbursing relief funds to ANCs, which this Court granted in part on April 27, 2020.

       The ANC Intervenor-Defendants are associations whose members include twelve Alaska

Native regional corporations and nearly 200 Alaska Native village corporations that will be




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adversely impacted should they be deemed ineligible for pandemic relief.2 ARA members are the

twelve land-based Alaska Native regional corporations that were created pursuant to the Alaska

Native Claims Settlement Act of 1971 (“ANCSA”). ARA’s member corporations represent over

130,000 Alaska Native shareholders. Since its inception in 1997, ARA has regularly engaged on

various legislative and regulatory issues on behalf of its members and for the benefit of their

members’ Alaska Native shareholders and communities. Formed in 2008, ANVCA represents

nearly 200 village corporations3 and aims to continue the sustainment of village corporations,

promote the success of its member village corporations, and protect their Native lands. ANVCA

supports those goals by providing education and outreach to its members, as well as legislative

and regulatory advocacy on behalf of its members.

       The ANC Intervenor-Defendants seek to intervene in this proceeding to protect their

member ANCs’ interests in Coronavirus Relief Fund payments. Unlike in the lower 48 states,

where tribal communities are oriented around, and services are provided by, federally recognized

tribes, in settling the aboriginal land claims of Alaska Natives in ANCSA, Congress distributed

Native lands in Alaska to Native-owned and Native-run corporations, known as ANCs.

43 U.S.C. § 1601 et seq. Owing to the decisions made by Congress in ANCSA, ANCs provide


2
 This motion to intervene is supported by declarations filed on behalf of seven Alaska regional
corporations and fifteen Alaska Native village corporations. See Ex. 1(Decl. of Aaron M.
Schutt); Ex. 2 (Decl. of Anthony Mallott); Ex. 3 (Decl. of Richard Glenn); Ex. 4 (Decl. of
Shauna Z. Hegna); Ex. 5 (Decl. of Sheri Buretta); Ex. 6 (Decl. of Sophie Minich); Ex. 7 (Decl. of
Wayne Westlake); Ex. 8 (Decl. of Nancy Andrew); Ex. 9 (Decl. of Alfred Thomas Harris);
Ex. 10 (Decl. of Clifford Blair); Ex. 11 (Decl. of Dean Gould); Ex. 12 (Decl. of Ed Herndon);
Ex. 13 (Decl. of Janine Avner); Ex. 14 (Decl. of Kenneth A. Hughes IV); Ex. 15 (Decl. of Leo
Barlow); Ex. 16 (Decl. of Melissa M. Kookesh); Ex. 17 (Decl. of Michele Christiansen); Ex. 18
(Decl. of Patrick McCarty); Ex. 19 (Decl. of Robert D. Mills); Ex. 20 (Decl. of Ron
Philemonoff); Ex. 21 (Decl. of Thomas Kirk); Ex. 22 (Decl. of Gail R. Schubert); Ex. 23 (Decl.
of Thomas Mack); Ex. 24 (Decl. of George Sam).
3
  This number has changed over time because some villages have either merged with their
respective Regional corporations or did not survive after the enactment of ANCSA.


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much of the same services and community support that in the lower 48 states are provided only

by federally recognized tribes. See, e.g., Ex. 5 (Buretta Decl.) at ¶¶ 3-4 (describing how

Chugach’s eligibility to participate in federal programs allows communities to access federal

funding to provide health and welfare services and housing support for Alaska Natives, including

those who have no other tribal affiliation); Ex. 10 (Blair Decl.) at ¶¶ 3-4 (detailing how Cape Fox

Corporation provides food, employment opportunities, and support for native cultural

preservation and community events for Saxman Village); Ex. 6 (Minich Decl.) at ¶¶ 7-13

(explaining how Cook Inlet Region, Inc. (“CIRI”), through affiliated non-profit organizations,

provides child and family services, substance abuse services, welfare assistance, job placement

and training, primary care, emergency, and specialized health care services, pharmacy services,

dental services, and housing assistance to close to 60,000 Alaska Native and American Indian

residents); Ex. 8 (Andrew Decl.) at ¶ 3 (discussing how the St. Mary’s Native Corporation

“provide[s] scholarships; funeral benefits; donations to our village tribes for annual meeting and

village clean up; Search and Rescue; traditional Yupik potlatches with neighboring villages;

back-to-school potlatches with blessings from the elders, parents, and teachers for a good year”

and many other benefits to its members); Ex. 3 (Glenn Decl.) at ¶ 5 (explaining that the Arctic

Slope Regional Corporation (“ASRC”) “provides substantial funds to assist North Slope

Borough residents and ASRC shareholders with medical travel and funeral related costs . . . and

related expenses as needed in cases of medical or funeral crises”).

       While the ANC Intervenor-Defendants are sympathetic to the Plaintiffs’ desire to protect

their own tribal members, the Alaska Natives that comprise and are serviced by the ANCs are no

less deserving of relief. As described in more detail below, without coronavirus relief funds, they

risk disproportionally bearing the brunt of this already-devastating pandemic. The ANC




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Intervenor-Defendants’ interests in obtaining such funding are thus critical to the ANC

Intervenor-Defendants’ Alaska Native shareholders, and those interests are not adequately

represented by the Secretary or any other party to this proceeding.

       Furthermore, the ANC Intervenor-Defendants have an interest in the Court’s resolution of

whether the Secretary properly interpreted “Tribal governments” and “Indian tribe” to include

Alaska Native village and regional corporations, an issue with implications that extend far

beyond this case. The term “Indian Tribe,” as used in the CARES Act, comes from the Indian

Self-Determination and Education Assistance Act, 25 U.S.C. § 5301 et seq., and that term is used

in scores of other statutes. The Court’s decision may thus not only materially impact the ANC

Intervenor-Defendants’ rights under the CARES Act, but also under the scores of other statutes

that use the same terminology. See, e.g., 25 U.S.C. § 4103(13) (Native American Housing

Assistance and Self-Determination Act of 1996).4

                                           ARGUMENT

I.     The ANC Intervenor-Defendants Are Entitled To Intervene As Of Right.

       The ANC Intervenor-Defendants’ intervention is predicated on the D.C. Circuit’s long-

held principle that “the right to intervention conferred by Rule 24 implements the basic

jurisprudential assumption that the interest of justice is best served when all parties with a real

stake in a controversy are afforded an opportunity to be heard.” Hodgson v. United Mine

Workers of Am., 473 F.2d 118, 130 (D.C. Cir. 1972). Rule 24 provides, in pertinent part:

       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

4
 Attached as Exhibits 25-27 to this motion to intervene are proposed answers corresponding
with the First Amended Complaint filed in Case No. 1:20-cv-1002-APM, ECF No. 11 (Apr 21,
2020), the First Amended Complaint filed in Case No. 1:20-cv-1059-APM, ECF No. 14
(Apr. 24, 2020), and the Complaint filed in Case No. 1:20-cv-1070-APM, ECF No. 1
(Apr. 23, 2020).


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        is so situated that disposing of the action may as a practical matter impair or
        impede the movant’s ability to protect its interest, unless existing parties
        adequately represent that interest.

Fed. R. Civ. P. 24(a)(2). The Court grants intervention if four conditions are satisfied:

(i) timeliness; (ii) a cognizable interest; (iii) impairment of the interest; and (iv) lack of adequate

representation by existing parties. See Fund for Animals, Inc. v. Norton, 322 F.3d 728, 731 (D.C.

Cir. 2003) (citations omitted). Further, “a party seeking to intervene as of right must demonstrate

that it has standing under Article III of the Constitution.” Id. at 731-32. The ANC Intervenor-

Defendants satisfy all four conditions for intervention as of right.

        A.      This Motion Is Timely.

        Courts in this circuit consider four primary factors in assessing the timeliness of a motion

to intervene: the “time elapsed since the inception of the suit, the purpose for which intervention

is sought, the need for intervention as a means of preserving the intervenor[s]’ rights, and the

probability of prejudice to those already parties in the case.” Smoke v. Norton, 252 F.3d 468, 471

(D.C. Cir. 2001) (quoting United States v. AT&T, 642 F.2d 1285, 1295 (D.C. Cir. 1980)). Where

intervention is prompted by a concern that the government might not appeal an adverse decision,

intervention is timely “if filed within the time period for appeal.” Id. at 471 (quoting Dimond v.

District of Columbia, 792 F.2d 179, 193 (D.C. Cir. 1986)).

        The ANC Intervenor-Defendants’ motion easily qualifies under the aforementioned

requirements. The ANC Intervenor-Defendants seek to intervene only two and a half weeks after

the original plaintiffs filed their Complaint (ECF No. 1) and before the Secretary has filed its

Answer. The only substantive proceeding was this Court’s consideration of Plaintiffs’ Motion for

Temporary Restraining Order and Preliminary Injunction on April 24, 2020, in which the ANC

Intervenor-Defendants participated as amici. This case has not otherwise meaningfully

progressed and the ANC Intervenor-Defendants’ participation will not be disruptive or unfair.


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See 100Reporters LLC v. U.S. Dep’t of Justice, 307 F.R.D. 269, 275 (D.D.C. 2014) (motion

timely where no substantive progress had occurred and intervention would not unduly disrupt

litigation or pose an unfair detriment to the existing parties).

        Furthermore, there is no risk of prejudice to the Parties. The ANC Intervenor-Defendants

seek to “participate in an upcoming . . . phase of the litigation” and do not seek to delay or

forestall consideration of the issues in this case; rather they have moved with haste to intervene

to protect their interest in the Coronavirus Relief Fund. Nat. Res. Def. Council v. Costle, 561

F.2d 904, 908 (D.C. Cir. 1977). Given the short amount of time since the filing of this case, the

fact that no responsive pleadings have been filed outside of the context of the injunction

proceedings, and the significance of the ANC Intervenor-Defendants’ interest in the outcome of

this case, this motion “cannot be regarded as untimely.” Move Pharms. Corp. v. Shalala, 140

F.3d 1060, 1076 (D.C. Cir. 1998).

        B.      The ANC Intervenor-Defendants’ Members Have Legally Protectable
                Interests.

        The ANC Intervenor-Defendants’ participation is warranted by their legally protected

interest in the outcome of this lawsuit. The ANC Intervenor-Defendants’ members “claim to

property that is the subject matter of th[is] suit” justifies their participation. Foster v. Gueory,

655 F.2d 1319, 1324 (D.C. Cir. 1981); see also 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.”). As associations, the ANC Intervenor-Defendants share their members’ legally

protectable interests for purposes of intervention. Cf. Sw. Ctr. for Biological Diversity v. Berg,

268 F.3d 810, 821–22 (9th Cir. 2001) (holding that a trade association had a sufficiently




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protectable interest when several of its members had protectable interests in the challenged

action).

       The CARES Act created an $8 billion relief fund for disbursement to “Tribal

governments.” The Secretary “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.” See Treasury Guidance (footnote omitted). The very fact that the ANC Intervenor-

Defendants and Plaintiffs disagree with each other on whether the Secretary’s interpretation

entitling the ANCs to some portion of those funds is correct (ANC Intervenor-Defendants

believe it is) makes it apparent that the ANC Intervenor-Defendants have the requisite interest in

the outcome of this lawsuit such that this factor can be “readily dispatched.” Fund for Animals,

322 F.3d at 735.

       Lastly, proposed intervenors that would have standing to sue in their own right (which

the ANC Intervenor-Defendants demonstrate below in Section II) automatically satisfy the

requirement to show a protectable interest for purposes of Rule 24. See Fund for Animals, Inc. v.

Norton, 322 F.3d 728, 735 (D.C. Cir. 2003) (quoting Fed. R. Civ. P. 24(a)(2)).

       C.      The ANC Intervenor-Defendants’ Significantly Protectable Interests May Be
               Impaired By Disposition Of This Case.

       Rule 24(a) requires only that an adverse outcome of this case “may as a practical

matter impair or impede” the ANC Intervenor-Defendants’ ability to protect their interests.

Fed. R. Civ. P. 24(a)(2). ANC Intervenor-Defendants’ interests will be impaired by an adverse

disposition holding that Alaska Native village and regional corporations are not entitled to

relief funds necessary to combat coronavirus in Alaska Native communities. The D.C. Circuit

has “look[ed] to the practical consequences of denying intervention, even where the possibility



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of future challenge to the regulation remains available.” Fund for Animals, 322 F.3d at 735

(quoting Costle, 561 F.2d at 909).

       The practical consequences to the ANC Intervenor-Defendants if they are denied

intervention are dire. Coronavirus Relief Fund payments are needed to react to the pandemic;

prevent further spread throughout Alaska Native communities; fortify the local economy; and, in

a worst case scenario, react to a potential reoccurrence of coronavirus in a State that in many

communities lacks the basic infrastructure that is common in the lower 48 states. E.g., Ex. 17

(Christiansen Decl.) at ¶¶ 3-8 & 11 (detailing how the four MTNT villages are ill-equipped to

deal with the pandemic due to substandard infrastructure, shortage of medical resources, and lack

of access to critical supply chains and discussing harm to shareholder members if funds from the

Coronavirus Relief fund are withheld from ANCs); Ex. 19 (Mills Decl.) at ¶ 7 (“If [Kake Tribal

Corporation] does not receive this CARE[S] Act funding, the impacts of the [COVID-19] will

cause the reduction if not complete elimination of critical private sector services in Kake,”

thereby “further decreas[ing] the standard of living in Kake, Alaska and increas[ing] the rate of

poverty in the community.”); Ex. 3 (Glenn Decl.) at ¶¶ 4-9 & 12 (describing the broad range of

services that Arctic Slope Regional Corporation provides to protect the health, welfare, and

cultural needs of its nearly 13,000 Iñupiat and Alaska Native shareholders and explaining that

ASRC has applied for CARES Act relief to combat the substantial impacts and hardships caused

by COVID-19); Ex. 5 Buretta Decl. at ¶ 5 (describing how Chugach Alaska Corporation has

supported Tribes and rural communities during the pandemic by providing masks, food,

education, and other resources and noting that “[i]t would be unreasonable to think Chugach will

not spend millions of dollars to assist with this crisis and recovery, that it did not budget for in

2020.”); see Ex. 7 (Westlake Decl.) at ¶ 5(“None of our villages are on a road system and must




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rely on air or water transportation for basic amenities and services. These villages receive limited

healthcare services from village clinics and a regional health center that has limited capacity to

hospitalize patients with severe cases of COVID-19.”).

        As the effects of the global pandemic continue ravaging local Alaskan communities, time

is of the essence. Denying the ANC Intervenor-Defendants’ intervention would work two

injustices, as critical time necessary to combat coronavirus will lapse if the ANC Intervenor-

Defendants’ are required to prepare and file a separate lawsuit and the funds appropriated to

“Tribal governments” may be fully allocated to other Tribal governments in the interim,

depriving the ANC Intervenor-Defendants of much-needed financial support even were a new

lawsuit ultimately to be resolved in the ANC Intervenor-Defendants’ favor. See Harrington v.

Sessions (In re Brewer), 863 F.3d 861, 873 (D.C. Cir. 2017)(“[u]ndue delay or unnecessary

litigation burdens have the ‘practical consequence’ of impairing third party interests in the

efficient assertion of their rights.”).

        Furthermore, the ANCs also would suffer from a new interpretation of “Indian Tribe”

that excludes the ANCs. The ANCs have participated for many years in numerous federal

programs for Indian tribes. See, e.g., Ex. 1 (Schutt Decl.) at ¶¶ 9-11 (explaining that Doyon,

Limited, an ANC for Interior Alaska, has for many years participated in programs under the

Native American Housing Assistance and Self Determination Act of 1996 and has benefited

from the federal Indian Child Welfare Act); Ex. 4 (Hegna Decl.) at ¶ 4 (identifying Koniag or its

subsidiaries as having participated in many federal programs, including under the Indian Self-

Determination and Education Assistance Act, the Native American Housing Assistance and Self

Determination Act of 1996, and the Buy Indian Act); Ex. 6 (Minich Decl.) at ¶¶ 13 (describing

how CIRI’s entitlement to participate as an “Indian tribe” under the Native American Housing




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and Assistance and Self Determination Act allows an affiliated organization to provide critical

housing services to underserved Alaska Native and American Indian peoples). The adverse

precedent that could be established by this Court in interpreting these legislative terms of art to

exclude ANCs could impair the interests of ANCs and the Alaska Natives they benefit in the

long term, far beyond the subject of this litigation. This specter of adverse precedent surely is

sufficient to support the ANC Intervenor-Defendants’ intervention. See Crossroads Grassroots

Policy Strategies v. FEC, 788 F.3d 312, 320 (recognizing that where an adverse ruling in the

case “would impair [intervenor’s] defense in a new proceeding because a judicial pronouncement

that the [agency’s decision] was contrary to law would make the task of reestablishing the status

quo more difficult and burdensome”).

        Because the ANC Intervenor-Defendants have a “substantial interest, directly related to

and threatened by” the relief sought by Plaintiffs in this case, the ANC Intervenor-Defendants

are entitled to intervene as of right. Kleissler v. U.S. Forest Serv., 157 F.3d 964, 972 (3d. Cir.

1998). Moreover, because the ANC Intervenor-Defendants’ rights are so directly implicated in

this lawsuit, its intervention “may lessen the need for future litigation to protect [its] interests”

and avoid an inequitable outcome where the ANC may succeed on the merits of future litigation

but fail to recover already-spent funds. Costle, 561 F.2d at 909.

        D.      The ANC Intervenor-Defendants Lack Adequate Representation.

        Under Rule 24, an applicant for intervention need merely show that representation of its

interests by existing parties “may be” inadequate and “the burden of making that showing should

be treated as minimal.” Fund for Animals, 322 F.3d at 735 (quoting Trbovich v. United Mine

Workers, 404 U.S. 528, 538 n.10 (1972)). The ANC Intervenor-Defendants are not adequately

represented by Plaintiffs, whose interests in this litigation are at odds with the ANC Intervenor-

Defendants, or by Defendant.


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       As a general matter, the federal government’s interests do not represent the interests of

entities like the ANC Intervenor-Defendants. Courts have long recognized that while the

mandate of federal agencies is to represent the public interest, individual entities naturally have a

“more narrow and parochial financial interest.” Fund for Animals, 322 F.3d at 737 (citation and

internal quotation marks omitted); accord, see Utah Ass’n of Counties v. Clinton, 255 F.3d

1246, 1255 (10th Cir 2001) (collecting cases from numerous federal appellate courts finding

that the U.S. government’s representation of the broad interests of the general public may

compromise its representation of the narrower interests of would-be intervenors and

concluding that “the government’s representation of the public interest generally cannot be

assumed to be identical to the individual parochial interest of a particular member of the

public merely because both entities occupy the same posture in the litigation”).

       The ANC Intervenor-Defendants represent the localized interests of Alaska Natives,

including many who are not members of federally recognized tribes and receive no services

delivered by federally recognized tribes. E.g., Ex. 6 (Minich Decl.) at ¶ 6 (“It has long been

established that, for the Alaska Native and American Indian peoples living in the Municipality of

Anchorage and the Matanuska-Susitna Valley, [Cook Inlet Region, Inc.] acts as the Indian tribe

providing services in those areas.”); Ex. 22 (Schubert Decl.) at ¶ 9 (explaining that 1,330 out of

8,000 shareholders “are not members of any village corporation or associated with any tribe”).

And, unlike the federal government, the ANC Intervenor-Defendants have a particularized and

substantial interest in preserving their own rights and opportunities that will be affected by the

outcome of this litigation. So while the federal government may be able to afford to negotiate




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away the ANC Intervenor-Defendants’ entitlement to relief funds or decide not to continue

defending its position in court, the ANC Intervenor-Defendants do not have that luxury.5

       Furthermore, the ANC Intervenor-Defendants’ participation will provide the Court with a

key perspective on this dispute. Intervention in similar circumstances has long been seen by

courts as serving a useful purpose. See Nat’l Res. Def. Council, Inc. v. U.S. Nuclear Regulatory

Comm’n, 578 F.2d 1341, 1345-46 (10th Cir. 1978). Here, the federal government is not as well-

suited as the ANC Intervenor-Defendants to articulate how ANCs operate and provide services

to Native people in Alaska because it lacks direct familiarity with those details. The ANC

Intervenor-Defendants can provide the Court with important context and help ensure the Court

has a full and accurate record from which to make its decision on the merits of this case.

       For these reasons, the ANC Intervenor-Defendants easily meet the “not onerous” burden

of showing that their interests are not adequately represented by the existing parties to the

litigation. Dimond v. District of Columbia, 792 F.2d 179, 192 (D.C. Cir. 1986) (citations

omitted).

II.    The ANC Intervenor-Defendants Have Standing To Intervene In This Case.

       In the D.C. Circuit, applicants for intervention as of right must demonstrate standing

under Article III of the Constitution. See United States v. Phillip Morris USA, Inc., 566 F.3d

1095, 1146 (D.C. Cir. 2009).6 Article III standing requires a showing of “(1) injury-in-fact,


5
  Neither would the ANC Intervenor-Defendants’ interests be adequately represented by
proposed intervenor-defendant Ahtna, Inc. (“Ahtna”). Although Ahtna can address its own
interests and concerns, it cannot adequately represent the interests of the ANC Intervenor-
Defendants’ associations, whose members provide services to a far broader range of
communities, villages, and Native shareholders than those served by Ahtna alone.
6
  However, this Court has also stated that “[t]he standing inquiry is repetitive in the case of
intervention as of right because an intervenor who satisfies Rule 24(a) will also have Article III
standing.” Akiachak Native Cmty. v. U.S. Dep’t of the Interior, 584 F. Supp. 2d 1, 7 (D.D.C.
2008) (citing Roeder v. Islamic Republic of Iran, 333 F.3d 228, 233 (D.C. Cir. 2003)).


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(2) causation, and (3) redressability.” Fund for Animals, 322 F.3d at 733 (citing Lujan v. Defs. of

Wildlife, 504 U.S. 555, 560-61 (1992)). Standing “is not a high hurdle . . . to clear” and the ANC

Intervenor-Defendants satisfy these criteria by demonstrating associational standing. Hardin v.

Jackson, 600 F. Supp. 2d 13, 15 (D.D.C. 2009).

       To establish associational standing, an organization “must demonstrate: (1) that at least

one member would have Article III standing in his or her own right; (2) ‘that the interests it seeks

to protect are germane to its purposes’; and (3) ‘neither the claim asserted nor the relief requested

requires an individual member participate in the lawsuit.’” Cigar Ass’n of Am. v. U.S. Food &

Drug Admin., 323 F.R.D. 54, 64 (D.D.C. 2017) (quoting Nat. Res. Def. Council v. EPA, 489 F.3d

1364, 1370 (D.C. Cir. 2007)). The ANC Intervenor-Defendants satisfy all three requirements.

       First, the standing of ANC Intervenor-Defendants’ members, as with the plaintiffs

themselves, is self-evident: the Secretary determined that ANCs are eligible for payments from

the Coronavirus Relief Fund, and the ANC Intervenor-Defendants’ members will be deprived of

such funding if Plaintiffs prevail in invalidating that determination. The specter of such harm is

sufficient to establish injury-in fact for each of the ANCs who comprise the ANC Intervenor-

Defendants. See Crossroads, 788 F.3d at 317 (“Our cases have generally found a sufficient

injury in fact where a party benefits from agency action, the action is then challenged in court,

and then an unfavorable decision would remove the party’s benefit.”). Given the nature of these

threatened harms, it bears emphasis that “economic injuries have long been recognized as

sufficient to lay the basis for standing.” Sierra Club v. Morton, 405 U.S. 727, 733–34 (1972).

Such injuries, in any amount, are sufficient to demonstrate standing. See United States v.

Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 689 n.14 (1973)




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        Case 1:20-cv-01002-APM Document 45 Filed 05/05/20 Page 16 of 20



(“We have allowed important interests to be vindicated by plaintiffs with no more at stake in the

outcome of an action than . . . a $5 fine and costs . . . and a $1.50 poll tax[.]”).

        Regarding causation and redressability, because the ANC Intervenor-Defendants’

members “can prove injury, then [they] can establish causation and redressability,” as their

injuries would be directly traceable to the Court’s decision in this case and the ANC Intervenor-

Defendants can prevent the injuries to their members by prevailing in this case. Crossroads,

788 F.3d at 312; see also Fund for Animals, 322 F.3d at 728 (finding associational standing

where an unfavorable agency determination would cause intervenor to lose tourism revenue). If

the Plaintiffs ultimately succeed in invalidating the Secretary’s determination regarding

eligibility for funding under Title V of the CARES Act, the ANC Intervenor-Defendants’

members will not receive any funds from the Coronavirus Relief Fund, which would greatly

hinder their interests, including their efforts to provide critical services to Alaska Native

communities. See Ex. 22 (Schubert Decl.) at ¶¶ 7-9 (detailing efforts by Bering Straits Native

Corporation (“BSNC”) to combat the significant impacts of the COVID-19 pandemic on the

Bering Straits region and noting that BSNC’s shareholders, including over 1,000 who are not

associated with any tribe, would receive “no benefits of any kind to assist with the impacts of

COVID-19” if Coronavirus Relief Fund payments are withheld from ANCs).

        Second, the interests that the ANC Intervenor-Defendants seek to protect in this case are

core to their organizations’ purposes. “Germaneness is satisfied by a ‘mere pertinence’ between

litigation subject and an organization’s purpose.” Competitive Enter. Inst. v. Nat’l Highway

Traffic Safety Admin., 901 F.2d 107, 111 (D.C. Cir. 1990). Here, ANC Intervenor-Defendants’

primary purposes are to advance and promote the interests of their member ANCs and thus, they

have an interest in ensuring that their members receive coronavirus relief funds. See ANCSA




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        Case 1:20-cv-01002-APM Document 45 Filed 05/05/20 Page 17 of 20



Regional Association, “Our Purpose,” available at https://ancsaregional.com/about-ara/

(describing the association’s purpose “[t]o promote and foster continued growth and economic

strength of the Alaska Native regional corporations for the benefit of their Alaska Native

shareholders and communities”); see also ANVCA, “Mission and Vision,” available

at https://anvca.biz/ (“ANVCA promotes the success of our Village Corporations and protection

of our Native lands.”).

       Like so many states, tribes, and local governments, the continued growth and economic

strength of the ANCs and Alaska Native shareholders and their communities during this

pandemic is contingent on their ability to obtain funds from the Coronavirus Relief Fund.

Without that funding, many Alaska Natives and their communities will be left without the

support Congress intended to provide. See Ex. 10 (Blair Decl.) at ¶ 6 (“Funds are critical to

ensuring food stability and stability for the community throughout the winter. The majority of

our local residents will have little or no season income to rely upon food for this winter. In

addition, most will not be able to afford the safety equipment necessary to protect themselves

and their families through an extended virus outbreak.”). Participation in this proceeding is

necessary to ensure that does not happen. Int’l Union, United Auto., Aerospace & Agr.

Implement Workers of Am. v. Brock, 477 U.S. 274, 286 (1986) (“little question” that interests in a

lawsuit are germane to an organization’s purpose when success in the lawsuit would further the

stated goals of the organization).

       Finally, neither the ANC Intervenor-Defendants’ claims nor relief requested require the

participation of the individual ANCs. Plaintiffs are challenging the ANCs’ entitlement to

payments from the Coronavirus Relief Fund on the theory that the ANCs are not “Tribal

governments” or “Indian Tribes” as such terms are used in Title V of the CARES Act. Plaintiffs’




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        Case 1:20-cv-01002-APM Document 45 Filed 05/05/20 Page 18 of 20



claims do not disambiguate between individual ANCs; under Plaintiffs’ theory, if one loses

funding, all lose funding. Thus, the participation of each individual ANC is not required.

       Because the ANC Intervenor-Defendants can demonstrate associational standing, they

have Article III standing to intervene in this action.

III.   Alternatively, ANC Intervenor-Defendants Should Be Granted Permissive
       Intervention.

       In the alternative, the ANC Intervenor-Defendants seek this Court’s permission to

intervene under Rule 24(b)(1)(B). In relevant part, the Rule provides that, “[o]n timely motion,

the court may permit anyone to intervene who . . . has a claim or defense that shares with the

main action a common question of law or fact.” Fed. R. Civ. P. 24(b)(l)(B). To qualify for

permissive intervention, an applicant must provide the following: “(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 main action.” EEOC v. Nat’l Children’s Ctr., Inc., 146 F.3d

1042, 1046 (D.C. Cir. 1998). Although an exercise of discretion, courts must consider whether

intervention will cause undue delay or prejudice to the original parties. Id. at 1045.

       The ANC Intervenor-Defendants meet the standard for permissive intervention under

Rule 24(b), for many of the same reasons they meet the standard for intervention as of right:

       First, because the ANC Intervenor-Defendants seek to defend the same claims Plaintiffs

brought against the Secretary, this Court has an independent ground for jurisdiction under

28 U.S.C. § 1367. See Butte County, Cal. v. Hogen, No. 08-519, 2008 WL 2410407, at *2

(D.D.C. June 16, 2018) (finding independent ground for subject matter jurisdiction where

proposed intervenor sought to defend against same allegation plaintiff raised against defendant,

and therefore jurisdiction existed under federal supplemental jurisdiction statute). Further,




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        Case 1:20-cv-01002-APM Document 45 Filed 05/05/20 Page 19 of 20



because the ANC Intervenor-Defendants have Article III standing, see supra Section II, this Court

has jurisdiction.7

        Second, as discussed above, this motion is timely and does not prejudice Plaintiffs’

interests in the case.

        Third, it is plain that there are common issues of law and fact between the ANC

Intervenor-Defendants’ defense and the main action. Plaintiffs have challenged, and seek to

invalidate, the Secretary’s determination that ANCs are eligible to receive relief funds under Title

V of the CARES Act because they meet the definitions of “Tribal government” and “Indian

Tribe” under that statute. Disposition of this case in Plaintiffs’ favor also would mean that the

ANC Intervenor-Defendants’ members would not receive any such relief funds. As a result, the

ANC Intervenor-Defendants’ members, and by extension the ANC Intervenor-Defendants

themselves, have a significant interest in affirming the Secretary’s determination of eligibility for

relief funds, warranting permission to intervene in this case.

                                          CONCLUSION

        This Court should grant the ANC Intervenor-Defendants intervention as of right under

Federal Rule of Civil Procedure 24(a)(2) because this motion is timely, it has an interest relating

to the subject of this action, its interest may be impaired or impeded, and its interest is

inadequately represented by the existing parties. Alternatively, the Court should grant ANC

Intervenor-Defendants permissive intervention under Rule 24(b)(1)(B).




7
  Whether Article III standing is required for permissive intervention remains “an open question”
in the D.C. Circuit. In re Endangered Species Act Section 4 Deadline, 704 F.3d 972, 980 (D.C.
Cir. 2013).


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       Case 1:20-cv-01002-APM Document 45 Filed 05/05/20 Page 20 of 20



Dated: May 5, 2020                 Respectfully submitted,

                                   /s/ Daniel W. Wolff
                                   Daniel W. Wolff (D.C. Bar #486733)
                                   David Chung (D.C. Bar #500420)
                                   Kirsten L. Nathanson (D.C. Bar #463992)
                                   Crowell & Moring LLP
                                   1001 Pennsylvania Avenue, NW
                                   Washington, D.C. 20004
                                   Tel: (202) 624-2500
                                   dwolff@crowell.com
                                   dchung@crowell.com
                                   knathanson@crowell.com


                                   Christine V. Williams
                                   J. Harrison Powell, II
                                   Outlook Law, LLC
                                   1016 West 6th Avenue, Suite 306
                                   Anchorage, Alaska 99501
                                   (907) 258-2200
                                   christinewilliams@outlooklaw.com
                                   harrisonpowell@outlooklaw.com

                                   Attorneys for Proposed Intervenor-Defendants
                                   Alaska Native Village Corporation Association, Inc.
                                   and Association of ANCSA Regional Corporation
                                   Presidents/CEO’s, Inc.




                                     19


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