The United States of America v. The State of Alaska et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
THE UNITED STATES OF AMERICA,
Plaintiff,
and
KUSKOKWIM RIVER INTER-TRIBAL
FISH COMMISSION, et al.,
Intervenor Plaintiffs,
v.
THE STATE OF ALASKA, et al.,
Defendants.
Case No. 1:22-cv-00054-SLG
ORDER RE ALASKA FEDERATION OF NATIVES’ MOTION TO INTERVENE
Before the Court at Docket 89 is the Alaska Federation of Natives’ Motion to
Intervene and Memorandum in Support (“AFN”). 	Defendants filed a response in
opposition to the motion at Docket 94 and AFN filed a reply in support of the motion
at Docket 95. No other party opposes AFN’s intervention. Oral argument was not
requested and is not necessary to the Court’s determination.
AFN seeks to intervene in this case “to protect the interests of its 160,000
Alaska Native members,”1 which it maintains are at risk of being “profoundly
impair[ed]” if the State prevails on its “argument for reinterpretation of Title VIII of
1 Docket 89 at 2-3.
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[the Alaska National Interest Lands Conservation Act (“ANILCA”)] only recently
advanced by State Defendants.”2
In its opposition, the State primarily focuses on the lack of timeliness of
AFN’s request. 	It asserts it will be “severely prejudice[d]” if AFN is permitted to
intervene at this time because summary judgment briefing is well underway and
because 	AFN’s 	proposed 	complaint 	raises 	two 	new 	counts, 	increasing 	the
likelihood of further delay of these proceedings.3 The State suggests that instead
of permitting AFN to intervene, it would “not object to AFN filing an amicus brief on
November 3,” the current due date for the other intervenors’ briefing.4
Federal Rule of Civil Procedure 24(a)(2) requires district courts to permit an
applicant to intervene if the applicant “claims an interest relating to the property or
transaction that is the subject of the action, and 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.”
When analyzing a motion to intervene of right under Rule 24(a)(2), a court
applies a four-part test:
(1) the motion must be timely; (2) the applicant must claim a
“significantly 	protectable” 	interest 	relating 	to 	the 	property 	or
transaction which is the subject of the action; (3) the applicant
must be so situated that the disposition of the action may as a
practical matter impair or impede its ability to protect that interest;
2 Docket 89 at 2.
3 Docket 94 at 2.
4 Docket 94 at 3.
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and (4) the applicant’s interest must be inadequately represented
by the parties to the action.5
Although the applicant must establish each of the four elements, “‘the requirements
for intervention are [to be] broadly interpreted in favor of intervention.’”6
The two elements challenged here by the State are the timeliness of AFN’s
motion and the adequacy of the representation of AFN’s interests by the current
parties.
A. The Timeliness of AFN’s Motion to Intervene
“The 	first 	element, 	timeliness, 	‘is 	the 	threshold 	requirement 	for
intervention.’"7 	Timeliness 	hinges 	on 	three 	factors: 	“‘(1) 	the 	stage 	of 	the
proceeding at which an applicant seeks to intervene; (2) the prejudice to other
parties; and (3) the reason for and length of the delay.’”8
As the Ninth Circuit recently explained,
In analyzing timeliness, we are also mindful of the balance of policies
underlying intervention. On the one hand, we “discourage premature
intervention” 	that 	unnecessarily 	“squander[s] 	scarce 	judicial
resources 	and 	increase[s] 	litigation 	costs.” 	John 	Doe 	No. 	1 	v.
Glickman, 256 F.3d 371, 376–77 (5th Cir. 2001). On the other hand,
we favor intervention because it “serves both efficient resolution of
issues and broadened access to the courts.” Wilderness Soc’y v. U.S.
Forest Serv., 630 F.3d 1173, 1179 (9th Cir. 2011) (en banc) (citation
5 Wilderness Soc’y v. U.S. Forest Serv., 630 F.3d 1173, 1177 (9th Cir. 2011) (en banc) (quoting
Sierra Club v. EPA, 995 F.2d 1478, 1481 (9th Cir. 1993)).
6 Smith v. L.A. Unified Sch. Dist., 830 F.3d 843, 853 (9th Cir. 2016) (alteration in original) (quoting
United States v. Alisal Water Corp., 370 F.3d 915, 919 (9th Cir. 2004)).
7 Kalbers v. U.S. Dep’t of Just., 22 F.4th 816, 822 (9th Cir. 2021) (quoting United States v. Oregon,
913 F.2d 576, 588 (9th Cir. 1990)).
8 Id. (quoting Smith, 830 F.3d at 854).
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omitted). Accordingly, while we construe the intervention motions that
we receive liberally, id., we do not require hasty intervention. See also
John Doe No. 1, 256 F.3d at 375 (“[T]imeliness is not a tool of
retribution to punish the tardy would-be intervener, but rather a guard
against prejudicing the original parties by the failure to apply sooner.”
(quoting Sierra Club v. Espy, 18 F.3d 1202, 1205 (5th Cir. 1994)));
Utah Ass’n of Cntys. v. Clinton, 255 F.3d 1246, 1250 (10th Cir. 2001)
(same); City of Chicago, 870 F.2d at 1263 (“The purpose of the
requirement is to prevent a tardy intervenor from derailing a lawsuit
within sight of the terminal.” (citation omitted)).9
Applying these considerations to the timeliness factors, the Court addresses
each of the three factors as follows:
1. The Length of and Reason for Delay
AFN asserts that the reason for its delay in seeking intervention was that,
until the State filed its motion for summary judgment in early September 2023, AFN
did not anticipate that the State would seek the invalidation of the rural subsistence
priority established in Title VIII of ANILCA. The State argues that the fact that the
State might assert such a claim in this case should have been clear to AFN no
later than July 2022, when Ahtna Tene Nené and Ahtna, Inc. (“Ahtna”) moved to
intervene on that very basis.
The State cites extensively to Ahtna’s July 2022 briefing filed in support of
its motion to intervene. 	Based on Ahtna’s review of the State’s answer, Ahtna
stated that it was “mov[ing] to intervene in this action to defend the application of
9 Id. at 823.
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the rural subsistence priority guaranteed by Title VIII of [ANILCA].”10 Ahtna argued
then 	that 	if 	the 	State’s 	attack 	was 	successful, 	it 	would 	“have 	far-reaching
consequences extending well beyond the Kuskokwim River.”11 	But the State, in
its opposition to Ahtna’s motion, disputed Ahtna’s assertion. 	Rather, the State’s
opposition in July 2022 described this case as a regional dispute, involving “a
federal preemption claim by the United States against the State of Alaska relating
to the management of fisheries on the Kuskokwim River.”12 	The State asserted
that because Ahtna did not have land or “subsistence users” near the Kuskokwim
River, it did not have the requisite “significant protectable interest” to warrant
intervention.13 	The Katie John trilogy of decisions is not cited in the State’s
opposition to Ahtna’s motion. 	And, after the Court granted Ahtna’s motion, the
State, in its answer to the allegation in Ahtna’s complaint that the State was
“abandon[ing] its long-standing legal position that the Katie John decisions ‘should
not’ be disturbed,”14 responded by “den[ying] that it has abandoned any long-
standing legal position; 	it has merely included all available legal defenses in its
answer to the United States’ complaint.”15
10 Docket 38 at 1-2.
11 Docket 38 at 3.
12 Docket 43 at 2.
13 Docket 43 at 2-4.
14 Docket 38-1 at 6, ¶ 14.
15 Docket 50 at 3, ¶ 14.
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Given the ambiguity in the State’s position regarding the validity of the rural
subsistence priority in ANILCA’s Title VIII prior to the filing of its September 2023
brief, and the Ninth Circuit’s caution against requiring “hasty intervention,” the
Court finds that this factor tips slightly toward a finding that AFN’s motion to
intervene was timely when filed within weeks of the State’s clear statement, on
September 1, 2023, that it is seeking the invalidation of the rural subsistence
priority set forth in Title VIII of ANILCA.
2. The Stage of the Proceeding
The trial court case is moving toward its conclusion. Two rounds of summary
judgment briefing have been filed; two additional rounds are outstanding. 	The
existing parties have all agreed that this case should be determined on summary
judgment. Thus, the trial court phase of this case is at a relatively advanced stage,
although the State did not clearly articulate its position on Title VIII until just last
month. This factor weighs slightly against a finding that the intervention motion is
timely.16
16 The State asserts that “Courts regularly deny motions to intervene in similar circumstances.”
Docket 94 at 12. 	But the two cases it cites for that proposition were both cases in which the
summary judgment briefing had concluded and the matters were already under advisement,
which is not the case here at this time. See Docket 94 at 12, n.57.
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3. The Prejudice to the Parties
“[P]rejudice must be connected in some way to the timing of the intervention
motion” and “the fact that including another party in the case might make resolution
more ‘difficult’ does not constitute prejudice.”17
Here, the State asserts that if the Court grants the motion to intervene, it will
delay 	the 	resolution 	of 	the 	summary 	judgment 	motions, 	thereby 	severely
prejudicing the State.18 	And the State maintains that AFN’s proposed complaint
contains two additional claims that have not been raised by any of the existing
parties to which the State would not have an opportunity to be respond.19 	AFN
responds that any such prejudice can be eliminated because AFN would comply
with the existing briefing schedule; therefore, the only prejudice to the State
created by AFN’s intervention would be the need for the State to reply to AFN’s
briefing, which is not considered actual prejudice in this context.20 	Further, as to
the two claims in its proposed complaint, AFN maintains that one claim closely
parallels the Federal Plaintiff’s claim, and the second claim is the mirror image of
the State’s affirmative defense, which this Court would be empowered to grant
under Federal Rule of Civil Procedure 56(f).
17 Kalbers, 22 F.4th at 825 (quoting Oregon, 745 F.2d at 552-53).
18 Docket 94 at 11-12.
19 Docket 94 at 12.
20 Docket 95 at 8 (citing Kalbers, 22 F.4th at 826 (holding no prejudice because proposed
intervenor “offered to comply with the existing summary judgment briefing schedule”)).
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The Court agrees with AFN that AFN can intervene at this time in a manner
that would accord the State the opportunity to oppose AFN’s arguments while not
causing delay in the determination of the summary judgment motions, thereby
eliminating any cognizable prejudice to the State. 	Therefore, the Court finds this
factor weighs strongly in favor of finding the intervention motion to be timely, as a
“lack of prejudice weighs heavily in favor of timeliness.”21
For the foregoing reasons, the Court finds that AFN’s motion to intervene is
timely.
B. 	The Adequacy of the Existing Parties’ Representation
AFN acknowledges that it shares the same “ultimate objective” as the
Federal Plaintiff in this action, which would normally create a presumption that the
Federal Plaintiff would adequately represent AFN’s interests.22 But it asserts that
that presumption is rebutted here “given the long history of litigation between the
Alaska Native community and the United States related to ANILCA.”23 	And in its
reply, AFN stresses the right to participate in a subsequent appeal if its motion to
intervene is granted by this Court—a right it would not have if participating before
21 Kalbers, 22 F.4th at 826.
22 Docket 89 at 16-17 (citing Sw. Ctr. for Biological Diversity v. Berg, 268 F.3d 810, 823 (9th Cir.
2001)).
23 Docket 89 at 17 (citing motion to intervene by the Kuskokwim River Inter-Tribal Fish
Commission at Docket 12, page 13, which cited Native Vill. of Quinhagak v. United States, 35
F.3d 388 (9th Cir. 1994)).
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this Court as an amicus.24 	AFN also emphasizes that it “has long been a
stakeholder fighting to protect subsistence interests that are fundamental to Alaska
Native 	peoples’ 	cultures, 	traditions, 	and 	food 	security, 	including 	through 	its
involvement in the passage of ANCSA, and then Title VIII of ANILCA,” followed by
its participation as a party in all three Katie John cases.25
Based on the foregoing, the Court finds that AFN has demonstrated that
AFN’s interests and the interests of its members are not adequately protected by
the existing parties to this litigation.
C. 	The Remaining Two Elements
AFN has demonstrated, and the State does not dispute, that AFN has a
significantly protectable interest in the rural subsistence priority set forth in ANILCA
and that it is so situated that the disposition of this action as proposed by the State
would impair its ability to protect that interest.
D. 	Conclusion and Order
Because AFN meets each of the four requirements for intervention as of
right under Rule 24(a), AFN’s motion to intervene at Docket 89 is GRANTED. AFN
shall immediately file a clean copy of its proposed complaint at Docket 89-1.
In an effort to any delay of this proceeding that the granting of this motion
might cause, the Court further orders and provides notice to the parties as follows:
24 Docket 95 at 14 (citing SEC v. Lincoln Thrift Ass’n, 577 F.2d 600, 607 (9th Cir. 1978); Diamond
v. Charles, 476 U.S. 54, 68 (1986)).
25 Docket 95 at 14; Docket 89 at 2.
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1. AFN may immediately file a one-page joinder in Federal Plaintiff’s motion
for summary judgment. 	No legal argument shall be included in that
joinder.
2. The State’s Motion for Summary Judgment filed at Docket 73 is deemed
to have been filed against AFN in addition to all the other named parties
to this action.26
3. AFN may file its opposition to the State’s motion for summary judgment
on or before November 3, 2023, and shall comply with the provisions of
Court’s order at Docket 47.
4. Pursuant to Rule 56(f), Federal Rules of Civil Procedure, the Court gives
notice to the parties that it may grant summary judgment to AFN on the
claims raised in its Complaint in Intervention. 	By according this notice,
the Court is not expressing any opinion at this time as to the merits of
any party’s claims, including AFN’s claims in its Complaint in Intervention.
Rather, the sole purpose of this notice is to accord to the State a
reasonable time to respond in its reply to the arguments that may be
advanced by AFN in its opposition to the State’s summary judgment
motion.
26 See Rule 1, Federal Rules of Civil Procedure (stating that the rules “should be construed,
administered, and employed by the court and the parties to secure the just, speedy, and
inexpensive determination of every action and proceeding”).
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IT IS SO ORDERED this 12th day of October 2023, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
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