Reply in Support of Motion to Intervene 1 1

Transcript

1 Case 2:17-cv-00219-JCC Document 24 Filed 03/24/17 Page 1 of 6 THE HONORABLE THOMAS S. ZILLY 1 2 3 4 5 6 DISTRICT COURT IN THE UNITED STATES ON DISTRICT OF WASHINGT WESTERN FOR THE 7 AT SEATTLE 8 s 9 . , THE NOOKSACK INDIAN TRIBE 00219 - cv - 2:17 Case No 10 Plaintiff, 11 271 NOOKSACK TRIBAL v. MEMBERS’ REPLY IN SUPPORT 12 OF THEIR MOTION TO INTERVENE , et al. ZINKE , RYAN K. 13 14 Defendants. 15 1 their opposition response in to the Nooksack Tribe’s “ reply to Intervenors motion to ” 16 intervene in this matter. Dkt. # 22 . Federal Defendants participation oppose Intervenor s ’ do not 17 18 . in this litigation 18 . Dkt. # 19 May Intervene As A Matter Of Right Pursuant To Rule 24(a). A. Intervenors 20 Plaintiff Dkt. # 22 as a matter of right. entitled Intervenors are not claims that to intervene 21 : at 3. they possess significant (1) because Intervenors are entitled to participate , However 22 23 1 24 “[W]hen the federal government engages in government government relations with a tribe, it must ensure that it - to - California Valley Miwok Tribe v. dealing with a duly constituted government that represents the tribe as a whole.” is 25 a responsibility to ensure that Jewell ng, the federal government has , 5 F. Supp. 3d 86, 97 (D.D.C. 2013). In so doi tribal government the Id. “ at 100. Here, the is organized by individuals who properly have the right to do so.” group of individuals making up the “ the determined, and rightfully so, that has federal government in entity ” Plaintiff Plaintiff Dkt. # 15, Exs. A - C . ’ s pleadings, which state otherwise , this matter do not represent “the Nooksack Tribe.” are misrepresentations to the Court. GALANDA BROADMAN PLLC 271 NOOKSACK TRIBAL MEMBERS’ REPLY IN SUPPORT OF th Ave., NE, Suite L1 8606 35 - THEIR MOTION TO INTERVENE 1 Mailing: PO Box 15146 Seattle, Washington 98115 - (206) 557 7509

2 Case 2:17-cv-00219-JCC Document 24 Filed 03/24/17 Page 2 of 6 1 protectable ; (2) Plaintiff ’s claims will directly affect them; and (3) no interests in this li tigation 2 Dkt. # s other party adequately represent interests 19. - 13 . See also their 14 at 3 1. Matter; Intervenors Possess A Significant Protectable Interest In This Resolution Of This Matter Will Actually Affect The 271. 4 5 . . . argues “[a]ny remedy in this case would not directly impact the 271 first Plaintiff 6 because the 271 cannot establish ‘an interest that is protected under some law’ that this Court may 7 “no specific legal or equitable however, enforce. ” Dkt. # 22 at 3 - 4. As Plaintiff concedes , 8 at 4 interest need be established.” Id. In re Estate of Ferdinand E. Marcos Human (quoting 9 ‘ 85 (9th Cir. 2008)) . Instead, “ the , 536 F.3d 980, 984 test is primarily a Rights Litig. - interest ’ 10 pparently concerned persons as is practical guide to disposing of lawsuits by involving as many a 11 , 622 F.2d 436, 438 (9th compatible with efficiency and due process Andrus Cnty. of Fresno v. . ” 12 13 s the protected by need not be asserted interest “ Intervenors’ . ) quotation omitted ( Cir. 1980) 14 ht to qualify as ‘significantly protectable .’” statute under which the litigation is broug Sierra Club 15 1481, 1484 1478, , 995 F.2d . Intervenors “ha[ve] a sufficient interest for (9th Cir. 1993) v. EPA 16 impairment of [their] interests as a result of the intervention purposes if [they] will suffer practical 17 pending litigation Cir. 2006). , 450 F.3d 436, 441 (9th . v. United States ” Cal. ex rel. Lockyer 18 . ’ of Arizona t of Interior In Coal , Growth v. Dep /New Mexico County for Stable Econ omic 19 for instance, it was held that an individual citizen’s interest in keeping the spotted owl on the 20 21 as a photographer, an amateur biologist, and a naturalist “ endangered species list, ” rendered his 22 ’ ‘ direct, substantial, and legally protectable “ interest for the purposes of intervention under Rule 23 100 F.3d 837, 841 (10th Cir. 1996) 24(a)(2). ” , for example, stand to lose Here, Intervenors . 24 16. housing and healthcare were Plaintiff federal For Plaintiffs’ to prevail. See generally Dkt. # 25 . to argue that Intervenors do not possess an interest in this action is absurd GALANDA BROADMAN PLLC 271 NOOKSACK TRIBAL MEMBERS’ REPLY IN SUPPORT OF th Ave., NE, Suite L1 8606 35 - THEIR MOTION TO INTERVENE 2 Mailing: PO Box 15146 Seattle, Washington 98115 - (206) 557 7509

3 Case 2:17-cv-00219-JCC Document 24 Filed 03/24/17 Page 3 of 6 1 next argues that “[t]he 271 cannot establish that their alleged ‘significant Plaintiff 2 “[t]he 271 have no cognizable interest because ” ’ are the subject of the action protectable interests 3 in the BIA’s recognition of the Tribal Council, the Tribe’s 638 contracts, or the benefits available 4 Plaintiff Again, at 5. Intervenors possess . Id to members under those contracts.” is wrong. 5 erests in this litigation, including economic interests, the several significant protectable int 6 resolution of which will actually affect them. Dkt. # 14 at 14 - 16. 7 w affirms Court the hether First, will directly affect s ’ decision the Federal Defendants 8 9 ; ’ (ii) tribal voting rights; (iii) rights to services funded through Intervenors (i) tribal membership 10 contracts at issue here; (iv) eligibility for tribal, state, and federal health care, housing, 638 the 11 education, and other assistance; (v) residential property investments; (vi) employmen t 12 opportunities; and (viii) Tribal treaty fishing, hunting and other rights (collectively, “Affected 13 15 . at ¶¶ 9 Rights”). Dkt. # 16 - , Ex. H, J 20, Exs. 4 10; Dkt. # - 14 Intervenors possess a direct , interest in the 638 Second non speculative economic - 15 United States v. Alisal contracts and services rendered to Tribal members under those contracts . 16 17 , 370 F.3d 915, 919 (9th Cir. 2004). denied Intervenors fraudulently has Plaintiff Water Corp. 18 i.e services and benefits — by available — education, housing, and general assistance , health care, 19 these 638 contracts. Dkt. # 15, Exs. P 9 - T; Dkt. # 16, Exs. 5 - through and ; Dkt. # 1 at ¶ 24 (The 20 ISD EA A “gave Indian tribes the authority to contract with Federal government to operate 21 persons.”); Ramah Navajo Sch. Bd., Inc. programs serving their tribal members and other eligible 22 - the BIA maintains wide 458 U.S. 832 (1982) ( , v. Bureau of Rev. of N.M. ranging authority to 23 24 subcontracting monitor and review and the BIA). agreements between the Indian organization 25 Federal Defendants appear to have withheld funds awarded under the contracts, as well as ter minated contracts and acted to re in part to ensure Intervenors would receive - assume services GALANDA BROADMAN PLLC 271 NOOKSACK TRIBAL MEMBERS’ REPLY IN SUPPORT OF th Ave., NE, Suite L1 8606 35 - 3 THEIR MOTION TO INTERVENE Mailing: PO Box 15146 Seattle, Washington 98115 (206) 557 7509 -

4 Case 2:17-cv-00219-JCC Document 24 Filed 03/24/17 Page 4 of 6 1 Intervenors’ significant - U ; Dkt. # 1 at ¶¶ 65 - 74, 77, 80 . - services. Dkt. # 15, Exs. A C, Q, T 2 ’ s cla ims Plaintiff protectable interests are clearly the subject of this action and resolution of the 3 . Intervenors may therefore intervene by right. S. Cal. will impact Intervenors’ Affected Rights 4 Edison Co. v. Lynch , 37 F.3d 497, 803 (9th Cir. 2002). 5 Interests Will Be Impaired. 2. Intervenors’ 6 Plaintiff impair the intervenors’ interest may not affect claims that “[a] lawsuit that would 7 However, Intervenors they have ‘other means’ to protect their interests.” Dkt. # 22 at 7 them if . 8 9 Federal Defendants’ “have no alternative forum where they can mount a robust defense” of 10 Plaintiffs’ actions , terminate 638 contracts, and re decision not to recognize - assume services. 11 urt is the appropriate forum for resolution of that , 450 F.3d at 442. This Co Cal. ex rel. Lockyer 12 13 - (citing 25 U.S.C. § 5331(a); 28 U.S.C. §§ 1331, 1361, 1651(a), 2201, 4 dispute. Dkt. # 1 at ¶¶ 13 2202; 5 U.S.C. § 702) . 14 may Additionally, the defunct Nooksack judiciary is not a means by which Intervenors 15 a defend their Affected Rights . As the Assistant Secretary of Indian Affairs rightfully recognized, 16 17 — infiltrated by has been it does not exist judiciary Nooksack Tribal legitimate Tribal Holdover 18 , operatives or their and refuses to permit Intervenors any kind of , Council members themselves 19 recourse against Dkt. # 15 at ¶ 7, Exs. D agents them or their . - F, K - P, R; Dkt. # 16 at ¶ 9, 13, N, 20 Nooksack Court of Appeals Exs. 4, 6. he in y Plaintiff before it was dismantled b — concluded As t 21 “the Nooksack government ceases to operate under order to further disenfranchise Intervenors — 22 Federal law indicates Other than this Court, which the rule of law.” Dkt. # 15, Ex. I at 2. is the 23 24 plausible s possess few Intervenor correct forum for resolution of this dispute, ” other means “ to 25 protect their Affected Interests. GALANDA BROADMAN PLLC 271 NOOKSACK TRIBAL MEMBERS’ REPLY IN SUPPORT OF th Ave., NE, Suite L1 8606 35 - 4 THEIR MOTION TO INTERVENE Mailing: PO Box 15146 Seattle, Washington 98115 (206) 557 7509 -

5 Case 2:17-cv-00219-JCC Document 24 Filed 03/24/17 Page 5 of 6 1 The Government Will Not Adequately Represent Intervenors’ 4. Interests. 2 Plaintiff Federal Defendants will adequately represent Intervenor’s that because argues 3 interests, Intervenors do not make the requisite showing of inadequacy of representation . Dkt. # 4 . - despite a shared ultimate objective with generally permit parties to intervene 10 22 at 8 Courts 5 f a showing of distinct parochial interests. where they have made overnment g ederal the e.g., , See 6 Mont. Wilderness Ass’n Cal. ex , 647 F.3d 893, 899 (9th Cir. 2011); Citizens for Balanced Use v. 7 he government’s 45. As the Ninth Circuit has observed, “t - rel. Lockyer , 450 F.3d at 444 8 9 representation of the public interest may not ‘be identical to the individual parochial interest’ of a 10 particular group just because ‘both entities occupy the same posture in the litigation.” Citizens for 11 As Intervenors explained in their Motion, ). quotation omitted ( 899 at , 647 F.3d Balanced Use 12 although they and have distinct each Federal Defendants share the same ultimate objective, they 13 parochial interests. Dkt. # 14 at 17 Intervenors ha - 19. he required showing of inadequacy met t ve 14 of representation. Citizens for Balanced Use , 647 F.3d at 899. 15 Intervenors B. May Permissively Intervene Under Rule 24(b). 16 17 argues that Intervenors must establish a basis for federal As a threshold matter, Plaintiff 18 subject matter jurisdiction. Dkt. # 22 at 11. This assertion is contrary to law. See Beckman 19 - Indus. v. Int’l Ins. Co. , 966 F.2d 470, 473 , 506 U.S. 868 (1992) 74 (9th Cir. 19 92), cert. denied 20 (where a part y seeks permissive intervention for the sole purpose of asking the court to address 21 exiting claims, a demonstration of independent jurisdiction is not generally required). Because 22 additional claims, but seek only resolution of existing claims, they need Intervenors do not raise 23 24 , Inc. v. City of Pueblo San Jose not demonstrate any independent showing of jurisdiction. Mi 25 , Oakland No. 06 - 4094, 2007 WL 578987, at * 8 (N.D. Cal. Feb. 21, 2007). o cast Intervenors’ interest in this litigation as seeking redress in an internal Attempts t GALANDA BROADMAN PLLC 271 NOOKSACK TRIBAL MEMBERS’ REPLY IN SUPPORT OF th 8606 35 Ave., NE, Suite L1 - THEIR MOTION TO INTERVENE 5 Mailing: PO Box 15146 Seattle, Washington 98115 (206) 557 7509 -

6 Case 2:17-cv-00219-JCC Document 24 Filed 03/24/17 Page 6 of 6 1 tribal dispute, asserts that a federal court cannot review a Tribe’s right to determine who Plaintiff 2 12. - 11 6, - asking this Court - 1 is a tribal member. Dkt. # 22 at 2, 5 not Intervenors are To be clear, 3 Instead, Intervenors Nooksack Indian member of the a and who is not to determine who is Tribe. 4 urge this Court to uphold the actions of the determinations issued particularly Federal Defendants, 5 of Indian Affairs , withhold the Assistant Secretary by ederal agency decisions to f as well as 6 . 2 at 21 - # 14 Dkt. assume services. - and re , terminate contracts funding, 7 Intervenors’ weigh being in the balance. - homes, health and well 8 9 , 2017 DATED this 24th day of March . 10 GALANDA BROADMAN PLLC 11 _____________ Bree R. Black Horse /s/ #30331 Gabriel S. Galanda, WSBA 12 , WSBA #39508 Anthony S. Broadman Dreveskracht , WSBA #42593 . Ryan D 13 Black Horse R. Bree , WSBA #47803 P.O. Box 15416 14 8606 35th Avenue NE, Suite L1 Seattle, WA 98115 15 - 557 - PH: 206 7509 7690 - FX: 206 - 299 16 [email protected] [email protected] 17 [email protected] [email protected] 18 Intervenors Attorneys for 19 20 21 22 23 24 25 GALANDA BROADMAN PLLC 271 NOOKSACK TRIBAL MEMBERS’ REPLY IN SUPPORT OF th 8606 35 Ave., NE, Suite L1 THEIR MOTION TO INTERVENE - 6 Mailing: PO Box 15146 Seattle, Washington 98115 7509 - (206) 557

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