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Plaintiffs' Reply Memorandum

Paula A. Barran, OSB No. 80397
601 S.W. Second Avenue, Suite 2300
Portland, Oregon 97204-3159
Telephone: (503) 228-0500
Facsimile: (503) 274-1212

Alan L. Schneider, OSB No. 68147
1437 SW Columbia Street, Suite 200
Portland, Oregon 97201
Telephone: (503) 274-8444
Facsimile: (503) 274-8445

Attorneys for Plaintiffs







Civil Case No. 96-1481-JE

Plaintiffs Memorandum in Opposition to Request to Intervene Filed Jointly on Behalf of the Nez Perce Tribe, the Confederated Tribes of the Colville and Umatilla, and the Confederated Tribes and Bands of the Yakama

This memorandum is filed on behalf of Plaintiffs in opposition to the request to intervene filed jointly on behalf of the Nez Perce Tribe, Confederated Tribes of the Umatilla and Colville, and Confederated Tribes and Bands of the Yakama. The court should deny the motion by the joint claimants. It has not been made in a timely manner given the long history of this litigation. It is brought by a new group of persons who were not individual or group claimants to the skeleton in the underlying administrative action. Moreover, the proposed intervenor has not shown that as a practical matter its rights, if any, would be impaired or that the federal defendants are not adequately representing its interests.

A. This New Motion Is Not Timely.

Whether intervention is sought as a matter of right, or on a permissive basis, the application must be timely made, a determination that is left to the trial court's discretion. Key Bank of Washington v. Southern Comfort, 106 F.3d 1441, 1442 (9th Cir. 1997), U.S. v. State of Wash., 86 F. 3d 1499, 1503 and 1507 (9th Cir. 1996).

Where a matter has proceeded for some time, a proposed intervenor does not necessarily get a second bite at the intervention apple by waiting for an adverse judgment and then filing a motion to intervene for purposes of appeal. That, however, is what this new group has done. Its members first made individual administrative claims, but then abandoned those claims in favor of a five-member coalition that was selected because it was believed to be better positioned to make a broader argument for cultural affiliation. Only one, the Yakama, ever moved to intervene but that motion was untimely. See Order of August 2, 2000. There, the Court noted that "The Yakama Nation has not provided a satisfactory explanation for the extraordinary delay in moving to intervene, and the motion to intervene simply cannot be characterized as timely" (Order at 4). The only explanation the new joint claimants offer is that the time to appeal has not run, which is no explanation at all, particularly when the first appearance of the newly configured coalition is made six years after this litigation began.

Contrary to the joint claimants' argument, a motion to intervene is not inevitably timely just because it is filed in the window between entry of judgment and the end of the time within which an appeal must be filed. That is only one consideration. "Whether intervention be claimed of right or as permissive, it is at once apparent, from the initial words of both Rule 24(a) and Rule 24(b), that the application must be 'timely.' * * * Timeliness is to be determined from all the circumstances. And it is to be determined by the court in the exercise of its sound discretion; unless that discretion is abused, the court's ruling will not be disturbed on review." NAACP v. New York, 413 U.S. 345, 367, 93 S.Ct. 2591, 2603, 37 L.Ed.2d 648 (1973).

A motion for intervention after judgment should be denied where a clear opportunity for pre-judgment intervention was not taken. Dimond v. District of Columbia, 792 F.2d 179, 193 (D.C.Cir.1986); see also Massachusetts Sch. of Law v. United States, 118 F.3d 776, 783 n. 5. (D.C.Cir.1997) ("[S]ome would-be intervenors may inexcusably neglect to try to enter the proceedings before judgment, at a time when notice of their arguments would have enabled the district court to avert the alleged errors. Then, post-judgment intervention for the purpose of challenging those supposed defects on appeal would rightly be denied as untimely.").

This group, for example, made no effort to intervene to stop the government's study efforts at a time when the trial court could have considered that motion; the delay to challenge study is not explained.

This new motion to intervene will further delay and complicate resolution of this matter, a lawsuit that was filed October 1996 and took six years to resolve. All interested tribes and bands were permitted to participate in all proceedings as amici, they filed briefs, and appeared at oral argument. The rules permitting intervention for purposes of appeal or in an underlying matter were not intended to overshadow the legitimate interests of the real parties, or of the public in the efficient resolution of a controversy. The interest in the prompt disposition of a controversy and the public interest in efficient disposition of court business must also be considered when deciding whether intervention in a particular case is appropriate. Smuck v. Hobson, 408 F.2d 175, 179 (D.C. Cir. 1969). So, the decision whether intervention (whether of right or permissive intervention) is warranted thus involves an accommodation between two potentially conflicting goals: to achieve judicial economies of scale by resolving related issues in a single lawsuit, and to prevent the single lawsuit from becoming fruitlessly complex or unending. As the District of Columbia Circuit noted, this task depends the contours of the particular controversy, and the facts and procedural posture become important so that "general rules and past decisions cannot provide uniformly dependable guides." Smuck at 170. The procedural rules governing intervention represent an accommodation between two competing goals; any analysis of a request must include the need to prevent a single lawsuit "from becoming fruitlessly complex or unending" and indiscriminate intervention must be avoided. United States v. Texas Eastern Transmission Corp., 923 F.2d 410 (5th Cir. 1991).

B. These "joint claimants" did not make a claim for the remains and the administrative decision did not find in favor of any claim by this new coalition.

For reasons that the four "joint claimants" do not explain, the composition of the group has changed from the coalition that filed a claim to the Kennewick Man remains. Although there had been individual claims by individual claiming tribes, those individual claims were abandoned in favor of a claim by a joint coalition of five entities. That joint claim included the Wanapum Band, which is not part of this new coalition. A year ago in their Amicus Memorandum the coalition emphasized that all individual claims had been superseded by the joint claim: "Here, a joint claim was brought when the claimant tribes recognized that they shared an interest in Columbia Park. The consolidated claim superceded (sic) all prior claims" (Amicus Memorandum at 30-31). They emphasized that "only one tribal claim" was filed (Amicus Memorandum at 34). It is, therefore, not accurate to represent that the four current "joint tribal claimants" are the claimants of the remains at issue and the express beneficiaries of the challenged determination (Memorandum in Support of Motion for Intervention at 2). At best, this is a new coalition formed by four tribes who were also members of a different claiming coalition. Moreover, because the coalition took the position that the joint coalition claim superseded all individual claims, the new group of "joint claimants" cannot argue that they have individual rights that are affected. Because of the choices they made in structuring the claim, all individual claims were dropped in favor of a coalition claim of tribes and bands. The joint claimants now argue otherwise.

The court should not condone such a dramatic reversal in position. At a minimum, judicial estoppel (the "preclusion of inconsistent positions") stands in the way of this tactic. Humetrix Inc. v. Gemplus, 268 F.3d 910, 917-18 (9th Cir. 2001)

Whether an applicant for intervention as of right demonstrates sufficient interest in an action is a "practical, threshold inquiry," and the proposed intervenor must demonstrate a "significantly protectable interest" in the lawsuit to merit intervention by demonstrating an interest that is protectable under some law and a relationship between the legally protected interest and the claims at issue. Northwest Forest Resource Council v. Glickman, 82 F.3d 825, 836-7 (9th Cir. 1996). As this case now stands, the question the court finally decided was the invalidity of the Secretary's decision that supported the administrative claim of the 5-person coalition to the skeleton. There were no individual claims by the four members of the new coalition of joint claimants. There was no claim by this new coalition of joint claimants as a group. Since this new coalition was not a claimant, and since its individual members were not individual claimants, their interests are not a "significantly protectable interest" as required to intervene as of right.

This issue remains significant even if the court considers the request to intervene on a permissive basis. In considering a request for permissive intervention (provided the motion is timely at the outset, which this is not), a court should also consider whether there are independent grounds for jurisdiction. Where, as here, the bodies have changed and the request is made by a group that was not an administrative claimant, and whose individual members dropped their individual claims, there is no independent basis for jurisdiction. Northwest Forest Resource Council v. Glickman, at 838-39.

C. The court's decision in this case does not impair the ability of these claimants to assert claims in the future.

In United States v. City of Chicago, 897 F.2d 243, 244 (7th Cir 1990), the Seventh Circuit denied an application to intervene in words that might well be echoed here: "Bringing this case to conclusion with the existing parties will cause no injustice. If new events amount to discrimination, the courts remain open to fresh litigation to enforce the right of all to be treated without regard to race, sex, and national origin." The same consideration is pertinent here. The court's decision in this case will in no way impair the ability of the joint claimants (either singly or as a group) to assert whatever claims they may have to other remains or cultural items that may be discovered. Those claims will be evaluated by the proper administrative agencies on their merits. And given the nature of the controversy and the decision over the Kennewick Man remains and the claims considered there, if these claimants jointly or individually identify new information that supports a claim to the remains, there is no law that says that a new claim cannot be made or evaluated. In that regard, the court's decision was a narrow ruling in that it vacated a specific administrative decision.

D. The new coalition has not met its burden to overcome the presumption that the federal defendants are protecting its interests.

The burden is on the joint claimants to demonstrate that the federal defendants will not adequately represent its interests, Northwest Forest Resource Council v. Glickman, at 838. That burden has not been met here, where there is a presumption to overcome. "A presumption of adequate representation generally arises when the representative is a governmental body or officer charged by law with representing the interests of the absentee." Pennsylvania v. Rizzo, 530 F.2d 501, 505 (3d Cir.), cert. denied, 426 U.S. 921, 96 S.Ct. 2628, 49 L.Ed.2d 375 (1976). That is all the more important here given the nature of the government's responsibilities to the tribes. The same claimants have already argued to the court that the federal government's trust responsibility "pervades every aspect of dealings" between the government and the tribes (Amicus Memorandum at 39). See also Arizona v. San Carlos Apache Tribe of Ariz., 463 U.S. 545, 576, 103 S.Ct. 3201, 77 L.Ed.2d 837 (1983), a decision cited and relied upon by the tribes (Amicus Memorandum at 39).

The joint claimants argue only that the federal defendants did not ask the court to modify or withdraw its opinion, did not request a stay pending appeal, have not yet notified the court or the joint claimants whether there will be an appeal, and took actions in the underlying administrative matter that were criticized by the court. Given the nature of the court's opinion and order, it is not surprising nor worthy of criticism that defendants did not ask the court to rethink an analysis that took more than a year. That judgment call does not demonstrate that the defendants do not adequately represent the joint claimant's interests nor does it overcome the legal presumption that applies. Absent a clear dereliction of duty, a proposed intervenor cannot rebut the presumption of adequate representation by merely disagreeing with the litigation strategy of the party. Northwest Forest Resource Council v. Glickman, at 838-839, Chiglo v. City of Preston, 104 F. 3d 185 (8th Cir. 1997). And see United States v. City of Chicago, at 244 (7th Cir. 1990), holding that intervention to take an appeal is permissible only if the original parties' decision to "discontinue the battle" reflects gross negligence or bad faith.

The joint claimants argue that the government did some things in the underlying administrative action that called for judicial criticism such as failing to clarify to plaintiffs that the ICC decision and aboriginal lands issues were back under consideration. That is a dramatic change in position from the arguments these joint claimants (and the Wanapum Band) presented to the court in the Joint Tribal Amicus Memorandum filed in June 2001. There, these same tribes told the court that the government had conducted a "full, complete, and thorough consideration and objective evaluation" of the evidence (Amicus Memorandum at 2), argued that plaintiffs' complaints about coaching and favoring the tribal claimants were mischaracterizations and "unsupported accusations" (Amicus Memorandum at 2). They said that consultation between the government and the tribes is "specifically mandated" and that "there were no inappropriate ex parte communications" (Amicus Memorandum at 3). They praised the government's "conservative and probing approach" (Amicus Memorandum at 24), and they independently argued that the government properly based its decision on its consideration of aboriginal lands (Amicus Memorandum at 29-35). They devoted nearly five pages of their briefing to defending the government's consultation with them (Amicus Memorandum at 37-41). They cannot now completely reverse their position and disavow their own arguments in order to claim that the government no longer represents their interests. The only thing that has changed is that they have the benefit of the Court's opinion of what happened behind closed doors at the Interior Department and White House.


For all the above reasons, plaintiffs ask that the motion to intervene be denied.

Dated this 7th day of October, 2002.


Paula A. Barran, OSB No. 80397
Of Attorneys for Plaintiffs


By ____________________________________
Alan L. Schneider, OSB No. 68147

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