Response to motion, Confederated Tribes of the Chehalis Reservation et al. v. Mnuchin, No. 1:20-cv-01002 (D.D.C.), Doc. 59 (May 14, 2020)

Summary

Ute Indian Tribe's opposition to motions to intervene in the consolidated cases Confederated Tribes of the Chehalis Reservation, et al. v. Mnuchin, Consolidated Civil Case No. 1:20-cv-01002-APM, in the U.S. District Court for the District of Columbia, Doc. 59, dated May 14, 2020. The Tribe argues that the proposed intervenors have not established standing and that permissive intervention should be denied. It further argues that the proposed intervenors did not meet their burden to plead and prove that the Court has an independent ground for subject matter jurisdiction. The conclusion asks the Court to deny the motions by the proposed intervenors; the signature block names Jeffrey S. Rasmussen of Fredericks Peebles & Patterson LLP, with s/ Jeffrey S. Rasmussen.

Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used

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“Response to motion, Confederated Tribes of the Chehalis Reservation et al. v. Mnuchin, No. 1:20-cv-01002 (D.D.C.), Doc. 59 (May 14, 2020).” Original at storage.courtlistener.com. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/response-to-motion-confederated-tribes-of-the-chehalis-reservation-et-dc58dfdc89/, SHA-256 f2e67aae9a1a462b0343a3f2156e7b1693f05dbe378a769e69484d802f2a6fde.

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Case 1:20-cv-01002-APM Document 59 Filed 05/14/20 Page 1 of 14

UNITED STATES DISTRICT COURT
DISTRICT OF COLUMBIA

CONFEDERATED TRIBES OF THE
CHEHALIS RESERVATION, et al.,
Plaintiffs,

Consolidated Civil Case No.
v.
1:20-cv-01002-APM
STEPHEN MNUCHIN, Secretary, United
States Department of the Treasury,
Defendant.

CHEYENNE RIVER SIOUX TRIBE, et al.,
Plaintiffs,
Consolidated Civil Case No.
v.
1:20-cv-01059-APM
STEPHEN MNUCHIN, Secretary, United
States Department of the Treasury,
Defendant.

UTE INDIAN TRIBE OF THE UINTAH
AND OURAY RESERVATION, Consolidated Civil Case No.
Plaintiff, 1:20-cv-01070-APM

STEPHEN MNUCHIN, Secretary, United
States Department of the Treasury,
Defendant.

UTE INDIAN TRIBE OPPOSITION TO MOTIONS TO INTERVENE
______________________________________________________________________________
Case 1:20-cv-01002-APM Document 59 Filed 05/14/20 Page 2 of 14

I. DEFENDANTS HAVE NOT ESTABLISHED STANDING.

Under D.C. Circuit precedent, all applicants for intervention under Fed. R. Civ. P. 24(a)(2)

and (b) must prove standing in order to intervene. Fund for Animals v. Norton, 322 F.3d 728 (D.C.

Cir. 2003); Deutsche Bank Nat’l Trust Co. v. FDIC, 717 F.3d 189, 193 (D.C. Cir. 2013). The

“irreducible constitutional minimum” of standing comprises three elements. Lujan v. Defenders

of Wildlife, 504 U.S. 555, 560 (1992). First, the party must have suffered an “injury in fact,” i.e.,

“an invasion of a legally protected interest” that is: “(a) concrete and particularized [;]” and “(b)

actual or imminent, not conjectural or hypothetical[.]” Id. (quotations omitted). Second, “there

must be a causal connection between the injury and the conduct complained of [,]” i.e., “the injury

has to be fairly traceable to the challenged action” and “not the result of the independent action of

some third party not before the court.” Id. (quotations, alterations, and ellipses omitted). Third,

“it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable

decision.” Id. at 561.

The proposed intervenors’ motions do not establish standing. Instead those motions were

based primarily on claims that they have “638 contracts” to survey land that they own. Those

allegations would not have been sufficient, standing alone, but the Tribe recognizes that the

proposed intervenors ill now switch to an assertion that they have standing because they assert that

they have money at stake in this case, based upon their interpretation of Title V of the CARES

Act.

This presents an unusual fact-scenario, because this Court has already reviewed their

interpretation of the CARES Act and, correctly, found that interpretation wanting. In most cases,

the Court cannot prejudge the movant’s claimed interest, and it accepts their claim of interest; but

the facts in this matter are reversed. The Court has reviewed their claim of interest already.

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Case 1:20-cv-01002-APM Document 59 Filed 05/14/20 Page 3 of 14

This case is therefore similar to Cobell v. Jewell, 2016 WL 10704595 at *1 (D.D.C. 2016),

where the Court had previously considered the interests that the proposed Intervenor sought to rely

upon, and the Court denied intervention. It stated.

As a threshold matter, ILTF fails to demonstrate that it has a sufficiently concrete
legally protected interest to establish Article III standing. ILTF, who is not a party
to the Settlement Agreement, asserts that it has a legally protected interest in an
award of expenses to class representatives under the Settlement Agreement.
However, any prospective recovery by ILTF would hinge on the Court’s
determination whether third-party expenses can and should be reimbursed under
the terms of the Settlement Agreement. See Cobell v. Jewell, 802 F.3d 12, 25-27
(D.C. Cir. 2015) (vacating this Court’s denial of class representatives’ petition for
third-party expenses and remanding the matter for this Court to consider whether
third-party expenses can and should be reimbursed under the Settlement
Agreement). ILTF’s asserted interest is, therefore, too conjectural to demonstrate
Article III standing. See Deutsche Bank, 717 F.3d at 193 (D.C. Cir. 2013) (finding
no legally protected interest for Article III standing purposes where, inter alia,
intervenor’s interest would crystalize only if the Court resolved a threshold legal
interpretation in a specific way).

Similarly in the present matter, the Court should hold, based upon its own prior decision

on preliminary injunction, that the movant’s claims are too conjectural. It should not apply the

analysis which is solely based upon the Movant’s claims.

II. APPLICANT SHOULD BE DENIED PERMISSIVE INTERVENTION.

The three proposed intervenors and the Tribe all agree on the law applicable to permissive

intervention. Each of the three proposed intervenors admits that there is a three element test for

permission intervention. An applicant for permissive intervention must first establish each of these

elements: “(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.” Aristotle

Int’l v. NGP Software, Inc., 714 F. Supp. 2d 1, 18 (D.D.C. 2010) (quoting EEOC v. Nat’l

Children’s Ctr., 146 F.3d 1042, 1046 (D.C. Cir. 1998)). Dkt 43 at 13(quoting EEOC); Dkt. 45 at

17 (same); Dkt. 46 at 15 (same). See also Fed. R. Civ. Proc. 24(b)(1)B).

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Case 1:20-cv-01002-APM Document 59 Filed 05/14/20 Page 4 of 14

The proposed intervenors also acknowledge that even if they establish each of the requisite

elements, that is not the end of the inquiry. Instead, the Court would then exercise its discretion,

to determine whether or not it should grant intervention. Dkt. 43 at 13; Dkt. 45 at 17; Dkt. 46 at

15; EEOC v. Nat’l Children’s Ctr., Inc., 146 F.3d 1042, 1046 (D.C. Cir. 1998); Cigar Assoc. of

American v. U.S. Food & Drug Admin., 323 F.R.D. 54 (D.D.C. 2020).

A. THE PROPOSED INTERVENORS DID NOT MEET THEIR BURDEN TO PLEAD AND
PROVE THAT THIS COURT HAS JURISDICTION OVER THEIR DEFENSES.

Because “[f][ederal courts are courts of limited jurisdiction, . . . [i]t is to be presumed that

a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon

the party asserting jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377,

(1994) (quotes and cite omitted). When an applicant seeks to intervene in a case without adding

new claims, he still must show that he has an independent ground for subject matter jurisdiction.

Sierra Club v. Van Antwerp, 523 F. Supp. 2d 5 (D.D.C. 2007). In this matter, the proposed

intervenors plainly did not meet their burden. They did not even make an effort to meet their

burden. Instead, after acknowledging that they are required to establish an independent ground for

subject matter jurisdiction, each proposed Intervenor stated, in a cursory and conclusory sentence,

that this Court has jurisdiction over their “defenses,” or their “defenses and arguments.” Dkts. 43-

4; 46-9; 47-27.

Courts do not have federal question jurisdiction based upon allegations of defenses. In

fact, allegations regarding defenses are wholly ignored when deciding whether a federal court has

jurisdiction. E.g., Caterpillar, Inc. v. Williams, 482 U.S. 386 (1987). Courts also, of course, do

not have jurisdiction over “arguments.”

The Tribe’s view is that the proposed intervenors could not have met their burden, but the

issue raised by their current motion is much simpler—applicants did not meet their burden in their

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Case 1:20-cv-01002-APM Document 59 Filed 05/14/20 Page 5 of 14

motions. Cf. Morten, 730 F. Supp. 2d at 15 (“[applicant] has not even attempted to explain why

this Court would have subject matter jurisdiction over its contract claims against the District of

Columbia. Consequently, its motion to intervene will be denied.”).

Presumably, the proposed intervenors will now, in their reply brief, seek to provide an

argument to attempt to show an independent ground for subject matter jurisdiction, but this Court

should ignore any arguments asserted in reply. Movants were required to make an argument in

their motion. The proposed intervenors are represented by experienced attorneys, and they

presumably know that their briefs needed to provide more than a conclusory sentence asserting

that they have some unexplained independent ground for subject matter jurisdiction. Instead they

only asserting, but did not try to show and did not show, that the Court had jurisdiction over their

defenses. Their motion therefore must be denied because they each failed to meet their burden.

B. THE PROPOSED INTERVENORS WOULD NOT HAVE BEEN ABLE TO SHOW AN
INDEPENDENT BASIS FOR SUBJECT MATTER JURISDICTION EVEN IF THEY HAD
TRIED.

For the reasons discussed above, this Court should not need to proceed to the remaining

arguments in this subsection. But if this Court were to proceed further, it would find the Court

does not have an independent ground for subject matter jurisdiction over the proposed intervenors’

claims or defenses.

As the plaintiff in this case, the Ute Tribe is the master of its own complaint. E.g.,

Caterpillar, Inc., 482 U.S. 386, 398-99. It, and it alone, gets to decide what claims it wants to

bring. Id. It chose to bring claims against Secretary Mnuchin. It did not bring any claims against

the for-profit corporations that are pretending that they are tribes. 1

1
In their motions to intervene, the proposed intervenors submit numerous documents in which
they refer to themselves as tribes, and adopt other language and processes used by actual tribes.
The Court should not be fooled by their pretense. Many people and entities in the Lower 48 do
exactly the same—claim to be tribes in order to try to take the benefits or usurp the rights that are
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Case 1:20-cv-01002-APM Document 59 Filed 05/14/20 Page 6 of 14

As discussed above, where, as here, a party is not asserting a claim, it must still show an

independent ground for subject matter jurisdiction. Sierra Club, 523 F. Supp. 2d 5. In Sierra

Club, the plaintiff brought case against the United States, and several companies sought to

intervene as defendants. The court discussed that the intervenors were required to show an

independent ground for subject matter jurisdiction, and the Court then held that the applicants

satisfied that requirement because “[a]s defendants, Intervenors would be subject to claims--

namely violations of several federal statutes . . . ” because the court had jurisdiction over “citizen

suits against ‘any person’ who is alleged to be in violation of the Endangered Species Act.” Id. at

10. In contrast in the present case, no proposed Intervenor has even alleged, let alone shown, that

it is subject to any of the claim raised by the Tribe. In fact, no proposed Intervenor would be

subject to any claim raised by the Tribe. Further, no proposed Intervenor has shown that that it

would or could be subject to any claim it is violating a federal statute. In fact, there is no possible

basis for asserting that any of the proposed intervenors is violating a federal statute as related to

this case. The only person or entity that is alleged to be violating a federal statute in this case is

Defendant Secretary Mnuchin.

Here, the proposed intervenors want to submit briefs in which they assert that Secretary

Mnuchin and the Department of Interior officers who decided that the intervenors were tribes were

correct. There is a procedure for submitting those types of briefs. It is a motion to submit an

only accorded to the federally recognized tribes. The Ute Tribe is particularly sensitive to this
issue. It has repeatedly had to combat entities like the for-profit corporations here, that seek to
bastardize what it means to be a tribe. E.g., United States v. Uintah Valley Shoshone Tribe, 946
F.3d 1216, 1219 (10th Cir. 2020) (United States brought suit against individuals who wrongly
claimed to be a tribe and who attempted to exercise sovereign authority on the Ute Reservation).
See also Hopi v. Trump, D.D.C case 1:17-cv-02590-TSC, Dkt. 58,at 3, n.1 (Ute Tribe lists 22
names of entities that have falsely claimed they are Indian tribes that exercise governmental
power on the Ute Reservation). Like the pretend tribe in Uintah Valley Shoshone Tribe, the for-
profit corporations’ pretense that they are tribes harm all of the federally recognized tribes.
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Case 1:20-cv-01002-APM Document 59 Filed 05/14/20 Page 7 of 14

amicus brief supporting an existing party. It is not to submit briefs as a “defendant” against whom

there are no claims. Proposed intervenors are simply not defendants. The Tribe did not name

them as defendants, and it did not bring any claims through which they have the interests of a

defendant.

C. THE PROPOSED INTERVENORS CANNOT ESTABLISH AN INDEPENDENT GROUND
FOR SUBJECT MATTER JURISDICTION BECAUSE THE UTE TRIBE HAS SOVEREIGN
IMMUNITY FROM SUIT.

The doctrine of sovereign immunity of federally recognized Indian Tribes is definitively

established. Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978). As a matter of federal law,

absent a clear and unequivocally expressed waiver of sovereign immunity, Indian tribes are not

subject to civil suit in any tribunal. C & L Enter., Inc. v. Citizen Band Potawatomi Indian Tribe

of Oklahoma, 532 U.S. 411, 418 (2001); Santa Clara Pueblo, 436 U.S. at 58-59.

Tribal sovereign immunity is a threshold issue, Timpanogos Tribe v. Conway, 286 F.3d

1195 (10th Cir. 2002) (citing Steel Co. v. Citizens for a Better Env., 523 U.S. 83 (1998). It therefore

must be resolved at this point. Id. In fact, if this Court were to grant intervention over the Tribe’s

objection, the Tribe could immediately appeal this Court’s order. Id. See also Prescott v. Little

Six, Inc., 387 F.3d 753 (8th Cir. 2004). Where, as here, a Tribe asserts sovereign immunity, that

immunity must be resolved before any action is taken which would be contrary to the claimed

immunity. Therefore, this Court is required to resolve this issue at this stage, and cannot postpone

the decision.

By bringing suit against the Secretary, the Tribe waived sovereign immunity as to the

Secretary and the United States, but only as to the Secretary and the United States. Okla. Tax

Comm’n v. Potawatomie Indian Tribe, 498 U.S. 505 (1991); Ute Indian Tribe v. Utah, 790 F.3d

1000 (10th Cir. 2015). In Ute Indian Tribe, the Tribe had filed suit, and the State of Utah claimed

that the Tribe’s filing of suit opened it up to counterclaims that they characterized as being simply

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Case 1:20-cv-01002-APM Document 59 Filed 05/14/20 Page 8 of 14

the other side of the coin from the Tribe’s claims. Then Judge Gorsuch, writing for the Court,

rejected that argument. He wrote, “Supreme Court precedent couldn’t be clearer on this point: a

tribe’s decision to go to court doesn’t automatically open it up to counterclaims—even compulsory

ones.”

This rule is based upon the more general rule that a sovereign, including a tribe, can

imposed any limitation or waiver on its own immunity, and the limits that it chooses to impose

must be strictly interpreted against waiver. C & L Enter., Inc., 532 U.S. at 418; Santa Clara

Pueblo, 436 U.S. at 58-59. The Tribe is the master of its own sovereignty, and when it brings a

complaint, it waives immunity only to the extent that it chooses. Here the Tribe chose to bring a

claim against the Secretary in his official capacity. That defines the limits of the Tribe’s waiver.

While the proposed intervenors can note that they did not file counterclaims that would, at

most, only take them out of the frying pan and into the fire. Because this case is limited by the

Tribe’s waiver of immunity, the proposed intervenors are not able to add anything to this case

which would provide an independent basis for subject matter jurisdiction. No matter which way

the proposed intervenors choose to jump, they cannot meet their burden to show an independent

basis for subject matter jurisdiction.

D. EVEN IF THE PROPOSED INTERVENORS MET ALL THREE ELEMENTS, THIS COURT
SHOULD DENY INTERVENTION UNDER ITS DISCRETIONARY AUTHORITY.

Even if Applicant had established all three requirements, the court still has the discretion

to determine whether intervention is warranted. “[A]s its name would suggest, permissive

intervention is an inherently discretionary enterprise.” Aristotle Int’l v. NGP Software, Inc., 714

F. Supp. 2d at 18 (quoting Nat’l Children’s Ctr., 146 F.3d at 1048). “To that end, Rule 24(b)

further provides that ‘in exercising its discretion the court shall consider whether the intervention

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Case 1:20-cv-01002-APM Document 59 Filed 05/14/20 Page 9 of 14

will unduly delay or prejudice the adjudication of the rights of the original parties.’” Tripp v. Exec.

Office of the President, 194 FORD. 344, 347-48 (D.D.C. 2000) (quoting Fed. R. Civ. P. 24(b)).

The ‘delay or prejudice’ standard presumably captures all the possible drawbacks
of piling on parties; the concomitant issue proliferation and confusion will result in
delay as parties and court expend resources trying to overcome the centrifugal
forces springing from intervention, and prejudice will take the form not only of the
extra cost but also of an increased risk of error.

Mass. School of Law at Andover, Inc. v. United States, 118 F.3d 776, 782 (D.C. Cir. 1997). Put

simply, intervention can cause undue delay and prejudice when it adds additional complication,

confusion, cost, and delay to the matter.

Courts may also consider “whether parties seeking intervention will significantly

contribute to . . . the just and equitable adjudication of the legal question presented.” Aristotle Int’l

v. NGP Software, Inc., 714 F. Supp. 2d at 18. Courts may deny intervention if intervention would

not assist in the development of the issues presented. Ctr. For Biological Diversity v. U.S.

Environmental Protection Agency, 274 F.R.D. 305, 312 (D.D.C. 2011) (quoting Humane Soc’y v.

Clark, 109 F.R.D. 518, 521 (D.D.C. 1985)).

Movants argue persuasively that they have substantial expertise and a unique
perspective regarding the manufacture and operation of aircraft and the engines
thereof. Contrary to movants’ assertions, however, aircraft and their engines are not
at issue in this case. Rather, the Court has been asked to determine whether EPA
has an enforceable obligation to make the findings sought by plaintiffs and, if so,
whether it has breached that obligation. With regard to these questions, movants
offer no more than conclusory assertions that their participation will be helpful, and
fail to demonstrate an “ability to contribute to the full development of the factual
and legal issues presented.”
Id.

Applying this law to the current case, the proposed intervenors would not add anything to

this case, and in any event they can continue to participate as amicus through their association.

This is a case concerning a dispute between the federal government and tribal governments,

regarding a decision of a federal officer. That federal officer will try to defend his and the

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Case 1:20-cv-01002-APM Document 59 Filed 05/14/20 Page 10 of 14

Department of Interior’s decision to treat for profit corporations as tribal governments. Even if

the movants could satisfy the three mandatory elements, their motion should be denied based upon

the Court’s discretionary authority.

III. THE PROPOSED INTERVENORS HAVE NOT ESTABLISHED A BASIS FOR INTERVENTION OF
RIGHT.

To satisfy the requirements of Fed. R. Civ. P. 24(a)(2), an applicant must demonstrate four

distinct requirements to be entitled to intervene as of right:

(1) timeliness of the motion; (2) whether the applicant claims an interest relating to
the property or transaction that is the subject of the action; (3) whether the applicant
is so situated that the disposition of the action may as a practical matter impair or
impede the applicant’s ability to protect that interest; and (4) whether the
applicant’s interest is adequately represented by existing parties.

Fund for Animals, Inc. v. Norton, 322 F.3d 728, 731 (D.C. Cir. 2003) (quotations omitted). As

shown below, Applicant has not carried its burden of demonstrating that all four requirements are

satisfied.

A. THE PROPOSED INTERVENORS ARE ADEQUATELY REPRESENTED BY THE
EXISTING PARTIES

Under the express terms of Rule 24, intervention of right is not available when the “existing

parties adequately represent” the proposed intervenor’s interest. Fed. R. Civ. Proc. 24(a)(2).

Although the movant’s burden of showing inadequacy of representation is minimal, Trbovich v.

United Mine Workers of Am., 404 U.S. 528, 538 n.10 (1972), a presumption of adequate

representation exists when both the movant and an existing party have the same ultimate

objectives. Illinois v. Bristol-Myers Co., 470 F.2d 1276, 1278 (D.C. Cir. 1972) (holding the State

of Illinois adequately represented the interests of private individuals and entities); see also Atlantic

Refinishing & Restoration Inc. v. Travelers Cas. & Surety Co. of Am., 272 F.R.D. 26, 30 (D.D.C.

2010) (recognizing the “same ultimate objectives” presumption).

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Case 1:20-cv-01002-APM Document 59 Filed 05/14/20 Page 11 of 14

Here, the pleadings before the Court establish unequivocally that the movants and the

Secretary of the Treasury share the same ultimate objectives and seek identical relief. Both the

Secretary and the movants are asking the Court to:

• Deny the Plaintiff Tribes’ requests for declaratory judgment by

--declaring the amounts and manner of payment under the CARES Act

to be committed to the Secretary’s discretion by law and thus

unreviewable;

--declaring that ANCs qualify as Tribal governments under the Cares Act

and the Indian Self-Determination and Education Assistance Act or

ISDEAA;

• Denying the Plaintiff Tribes’ motion for injunctive relief. 2

A movant may overcome the presumption of adequate representation by showing the

existence of “special circumstances” that make the existing party’s representation inadequate.

Schoenborn v. Wash. Metro. Area Transit Auth., 247 F.R.D. 5, 9 (D.D.C. 2007) (holding that a

special circumstance existed because of potentially conflicting claims to a wrongful death award).

A movant may also overcome the presumption of adequate representation by showing that

the movant intends to raise claims or arguments that would not otherwise be raised. Atlantic, 272

F.R.D. at 30 (citing Jones v. Prince George’s Cnty., Md., 348 F.3d 1014, 1010-20 (D.C. Cir.

2003)).

Here, however, none of the proposed intervenors has shown the existence of “special

circumstances” that overcome the presumption of adequate representation—at least not at this

2
Secretary’s Opposition to Plaintiffs’ Motion for Temporary Restraining Order and Preliminary
Injunction, Dkt. No. 21; Movants’ proposed answers to Plaintiffs’ complaints, Dkt. Nos. 43-2, 43-
3 and 43-4 (for Ahtna, Inc.); Dkt. Nos. 45-25, 45-26 and 45-27 (for the ANC Associations); and
Dkt. Nos. 46-7, 46-8 and 46-9 (for Calista et al.).
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Case 1:20-cv-01002-APM Document 59 Filed 05/14/20 Page 12 of 14

stage of the proceedings. See Illinois, 470 F.2d at 1278 (the court did not grant intervention but

stated it would “leave open” the possibility of “mandatory intervention” at a later stage in the

proceedings).

Here, the movants have not identified any claims, nor any legal arguments, that are

independent of the legal arguments that are being advanced by the Secretary of the Treasury.

Indeed, the “Joint Notice Regarding Motions to Intervene” filed by Plaintiffs in case numbers 1:20-

cv-01002 and 1:20-cv-01059, Dkt. No. 57, informs the Court of discussions between Plaintiffs and

movants, and informs the Court that, if allowed to intervene, movants plan to participate in the

existing parties’ plan to litigate this case expeditiously based on cross-motions for summary

judgement. (“Plaintiffs and the ANC Intervenors propose the following expedited case schedule.”

Dkt. 57 at 3).

Movants have not alleged any collusion, nonfeasance, or adversity of interest between

movants and the Secretary that would lead to inadequate representation. Although movants “may

have different reasons than the government” for seeking to defeat Plaintiffs’ claims, the interests

of the movants and the Secretary in this case are aligned. North Dakota v. United States, 787 F.3d

918, 921-22 (8th Cir. 2015) (denying prospective defendant intervention on the side of the federal

government). See generally Cobell v. Jewell, No. 96-01285, 2016 WL 10704595, at *2 (D.D.C.

March 30, 2016), and cases cited therein.

Even if the government “theoretically may offer a limiting construction of a statute that is

narrower than that of a party proposing intervention,” it does not mean that the prospective

Intervenor “has overcome the presumption of adequacy of representation.” Freedom From

Religion Found., Inc. v. Geithner, 644 F.3d 836, 842 (9th Cir. 2011) (quoting California ex rel.

Lockyer v. United States, 450 F.3d 436, 440 (9th Cir. 2006) (denying prospective defendant

intervention on the side of the federal government)). See also Wisc. Educ. Ass’n v. Walker, 705
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Case 1:20-cv-01002-APM Document 59 Filed 05/14/20 Page 13 of 14

F.3d 640, 658-59 (7th Cir. 2013 (denying prospective defendant intervention on the side of the

State of Wisconsin); San Juan Cnty. v. United States, 503 F.3d 1163, 1203-07 (10th Cir. 2007) (en

banc) (denying prospective defendant intervention on the side of the federal government); Sierra

Club, Inc. v. Leavitt, 488 F.3d 904, 909-11 (11th Cir. 2007) (denying prospective defendant

intervention on the side of the federal government); United States v. Michigan, 424 F.3d 438, 443-

45 (6th Cir. 2005 (denying prospective defendant intervention on the side of State of Michigan).

In opposing intervention, the Ute Tribe is mindful of this Circuit’s precedents, noting a

skepticism of “government entities serving as adequate advocates for private parties,” Crossroads

Grassroots Policy Strategies v. Fed. Election Comm’n, 788 F.3d 312, 321 (D.C. Cir. 2015),

particularly when the private-party Intervenor asserts a “financial stake in the outcome” of the suit.

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

The Tribe, however, notes that Crossroads was reversed because the district court in that

case applied the wrong legal standard in ruling on intervention. Additionally, the Tribe notes that

the ANCs are not petitioning this Court as “private parties,” rather, the ANCs seek intervention as

self-professed “tribal governments.” As such, they are not claiming a private financial stake in the

outcome of the suit as there was in Dimond. Under the circumstances, the Tribe believes this case

to be more akin to Bruch v. Griffith Energy Services, Inc. than to Dimond. Here, as in Bruch, Nos.

11-983, 11-1101, 2014 WL 12799159, at *4 (D.D.C. March 24, 2014), there is a specific amount

of money that will be distributed. And like the defendant in Bruch, the Secretary has indicated he

will distribute the money at issue in this case consistent with court guidance and approval. Under

these facts, there can be no dispute that the Secretary is adequately representing the movants’

interest.

CONCLUSION

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Case 1:20-cv-01002-APM Document 59 Filed 05/14/20 Page 14 of 14

For all of the reasons stated above, the Court should deny the motions by the proposed

intervenors.

Respectfully submitted this 14th day of May, 2020.

FREDERICKS PEEBLES & PATTERSON LLP
s/ Jeffrey S. Rasmussen
Frances C. Bassett, (CO Bar No. 11970),
Pro Hac Vice Admission
Jeffrey S. Rasmussen, (WA Bar No. 21121),
Pro Hac Vice Admission
Jeremy J. Patterson, (CO Bar No. 38192),
Pro Hac Vice Admission
1900 Plaza Drive
Louisville, Colorado 80027
Telephone: (303) 673-9600
Facsimile: (303) 673-9155/9839
Email: fbassett@ndnlaw.com
Email: jrasmussen@ndnlaw.com
Email: jpatterson@ndnlaw.com

and

Rollie E. Wilson (D.C. Bar No. 1008022)
401 9th Street, N.W., Suite 700
Washington, D.C. 20004
Telephone: (202) 450-4887
Facsimile: (202) 450-5106
Email: rwilson@ndnlaw.com

Counsel for Plaintiff Ute Indian Tribe of the Uintah
and Ouray Reservation

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