Mandan, Hidatsa and Arikara Nation v. United States Department of the Interior

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 1, 2023 Decided April 21, 2023
No. 22-5185
MANDAN, HIDATSA AND ARIKARA NATION,
APPELLEE
v.
UNITED STATES DEPARTMENT OF THE INTERIOR, ET AL.,
APPELLEES
STATE OF NORTH DAKOTA,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:20-cv-01918)
James M. Auslander argued the cause for appellant State of
North Dakota. With him on brief were Nessa Coppinger and
Peter J. Schaumberg.
Timothy Purdon argued the cause for appellee Mandan,
Hidatsa and Arikara Nation. With him on brief were Philip
Baker-Shenk and Steven D. Gordon.
Mary G. Sprague, U.S. Department of Justice, argued the
cause for appellees Robert Anderson, Debra A. Haaland, and
United States Department of the Interior. With her on brief was

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Rachel Heron.
Before: SRINIVASAN, Chief Judge, PILLARD, Circuit Judge,
and RANDOLPH, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
RANDOLPH.
Concurring opinion filed by Circuit Judge PILLARD.
RANDOLPH, Senior Circuit Judge: This is an appeal from
the district court’s denial of the State of North Dakota’s
supplemental motion to intervene in the lawsuit against the
Department of the Interior brought by the Mandan, Hidatsa and
Arikara Nation, recognized as the Three Affiliated Tribes of the
Fort Berthold Indian Reservation.1
To put the case succinctly, the State claims that it owns the
bed of Missouri River running through the Reservation. The
Tribes’ complaint asserts that the Tribes, not the State, own the
riverbed. An affidavit of North Dakota’s Director of Mineral
Management, executed in 2020, stated that North Dakota had
issued approximately 255 oil and gas leases to the Missouri
Riverbed within the Reservation’s boundaries and that the
lessees were withholding royalty payments pending resolution
of this dispute. As of 2020, the State estimated that the withheld
payments were in excess of $116 million.
The Tribes’ action against the Interior Department and
several of its officers in their official capacity was in four
1 The Fort Berthold Indian Reservation, located in central North
Dakota, consists of roughly one million acres, nearly half of which is
owned by Native Americans, either as individual allotments or by the
Tribes themselves.

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counts.
Count I and Count II alleged that the Tribes owned the
Missouri Riverbed within the Reservation, and yet the State had
granted, under State law, mineral leases to the riverbed property
and were collecting royalties. Count I claimed that a 2020
opinion (M-37056) of the Solicitor of Interior concluding that
the State owned the riverbed and its minerals violated the
Administrative Procedure Act, 5 U.S.C. § 706. In Count II, the
Tribes asserted that the new 2020 Interior opinion was the result
of improper pressure on Interior by the State of North Dakota
and so violated the APA. Before that 2020 Opinion, the Interior
Department had taken the position that the Tribes owned the
Missouri Riverbed, a position it first espoused in 1936.
Count III of the Tribes’ complaint sought an accounting
“regarding the Missouri Riverbed and underlying mineral estate
within the Reservation, including the production and extraction
of minerals from this trust property and the value of royalties
owed thereon.” Compl., Prayer for Relief ¶ C. Count IV
alleged, among other things, that Interior had breached its
fiduciary duty to protect the Tribes’ beneficial ownership of the
riverbed; this Count also sought an order compelling Interior to
“collect, deposit and invest, or pay over funds” owing to the
Tribes from the extraction of minerals underlying the riverbed.
In August 2020 when North Dakota became aware of the
Tribes’ lawsuit in the federal district here, the State filed an
“emergency” motion to intervene. Invoking Federal Rule of
Civil Procedure 24(a)(2) and claiming a proprietary and
sovereign interest in the riverbed, the State claimed a right to
intervene with respect to Count I.2 The Tribes opposed the
2 The State also sought permissive intervention, see Rule 24(b),
and reserved its right to intervene on the other three Counts when and

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State’s motion on the ground that the Interior Department would
adequately protect the State’s interest in the riverbed and its
minerals. (At the time, the position of the Interior Department
was the same as the State’s, that the State owned the Missouri
Riverbed.) The district court granted the State’s motion to
intervene, thus making the State a party in the case. As such, the
State filed an answer to the first sixty-nine paragraphs of the
Tribes’ Complaint, which included the six paragraphs
comprising Count I.
By 2022, with the case still pending, the Administration had
changed and a new Interior Solicitor was in office. This
Solicitor withdrew his predecessor’s 2020 opinion and declared
in an opinion (M-37073) that the riverbed and its minerals
belonged to the Tribes. The Interior Department informed the
district court of the new Solicitor opinion, and stated that
Interior’s Bureau of Indian Affairs had recorded title to the
disputed lands in its Office of Land Titles and Records as held
by the United States in trust for the Tribes.
With agreement of the Tribes, the Interior Department, and
North Dakota, the district court dismissed as moot Counts I and
II, and part of Count IV. The court also stated its view that
North Dakota would remain a party and did not need to file
another intervention motion with respect to Count III and the
remainder of Count IV.
The Tribes, now joined by the Interior Department, filed
oppositions to the State’s continuing as a party. In response, the
State moved again to intervene with respect to the remaining
Counts. This time the district court denied the State’s
intervention motion, a ruling that is now the subject of the
if they became ripe for adjudication.

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State’s appeal.3
In support of its second motion to intervene, North Dakota
claimed that the court, in order to decide the questions posed by
Count III and the remainder of Count IV, would have to resolve
the title dispute. The district court responded that “there [was]
no longer a live controversy before the Court on that issue.”
The court explained: “At various points, the State argues that ‘an
M-Opinion does not establish legal title’ and that, as a result, a
dispute remains. But the Court is not relying on the new M-
Opinion as establishing legal title; the recordation accomplished
that.”
The district court’s ruling was mistaken. As then-Judge
McConnell held for the court in Southern Utah Wilderness
Alliance v. Bureau of Land Management, 425 F.3d 735 (10th
Cir. 2005), Interior lacks “authority to adjudicate legal title to
real property,” which “is a judicial, not an executive function.”
Id. at 752. The Interior Department concedes as much. The
action of the Bureau of Indian Affairs recording title in its
records office therefore could not “establish legal title,” as the
district court supposed. As Interior stated in its brief, “there has
been no final determination of title to the Missouri riverbed.”4
3 The United States has not filed a quiet title action with respect
to the Missouri Riverbed as it did in Montana v. United States, 450
U.S. 544 (1981), to settle a dispute between the State of Montana and
the Crow Tribe about title to the riverbed of the Big Horn River within
the Crow Reservation. Id. at 549.
4 In its answer to the Tribes’ original complaint, Interior admitted
that in 1936 the Interior Solicitor rendered an opinion (M-28120) that
the Tribes owned the Missouri Riverbed. But Interior asserted that
“Opinion M-28120 could not have and did not establish or vest in [the
Tribes] title to the bed of the Missouri River running through the Fort
Berthold reservation.” Federal Defendants’ Answer to Plaintiff’s

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What we have just written puts in the correct light North
Dakota’s right to intervene under Rule 24(a)(2) with respect to
the remaining Counts in the Tribes’ complaint.
There is no doubt that the State satisfied the Rule’s
requirement that the intervention motion must be timely. See
NAACP v. New York, 413 U.S. 345, 365–66 (1973).
Another requirement of Rule 24(a)(2) is that no existing
party in the action would adequately represent the movant’s
interest. Interior admits that in the district court it did not
oppose the State’s motion on the ground that it “could
adequately represent the State’s claimed interest in the historical
riverbed had title been at issue in the remaining claims.”
Interior’s position is understandable. The movant’s burden of
showing inadequate representation is “minimal.” Trbovich v.
United Mine Workers of America, 404 U.S. 528, 538 n.10
(1972). Interior, having started out as an ally, is now North
Dakota’s adversary. That in itself is enough to disqualify
Interior as a faithful representative of North Dakota’s interest in
this lawsuit.
There are two questions remaining with respect to Rule
24(a)(2). (The Tribe opposes intervention on a different ground,
which we will get to in a moment.)
One is whether, in the Rule’s language, North Dakota
“claims an interest relating to the property or transaction that is
the subject of the action.” Several of our opinions,
reformulating this requirement, state that the movant must
“demonstrate a legally protected interest in the action.” E.g.,
Deutsche Bank Nat’l Tr. Co. v. FDIC, 717 F.3d 189, 192 (D.C.
Cir. 2013); Karsner v. Lothian, 532 F.3d 876, 885 (D.C. Cir.
Compl. ¶¶ 3, 36.

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2008); SEC v. Prudential Sec. Inc., 136 F.3d 153, 156 (D.C. Cir.
1998). This restatement – which the district court quoted –
runs the risk of being misconstrued. Rule 24(a)(2) does not
require an “interest in the action.” The “interest” is in the
“property or transaction.” And there is no requirement that the
movant “demonstrate” the interest, if “demonstrate” means, as
it often does, “prove.” All that is required is a “claim.” See
Williams & Humbert Ltd. v. W. & H. Trade Marks (Jersey) Ltd.,
840 F.2d 72, 77 (D.C. Cir. 1988); United States v. Am. Tel. &
Tel. Co., 642 F.2d 1285, 1291 (D.C. Cir. 1980).
Does North Dakota “claim[] an interest relating to the
property . . . that is the subject of the action”? Of course it does.
The “property” is the Missouri Riverbed, its minerals and the
royalties from the mining leases the State has issued. There can
be no doubt that this “property” is “the subject” of Count III and
the remainder of Count IV. Count III states:
The Court should enter an order directing the
DOI to provide an accounting to the MHA
Nation, in accordance with the DOI’s statutory,
regulatory, and trust obligations, regarding the
Missouri Riverbed within the Reservation and
the underlying mineral estate, and the production
and extraction of minerals from that property,
and all royalties due and/or collected on such
minerals.
Compl. ¶ 83. Count IV seeks a court order compelling Interior
“to administer and account for the [Tribes’] mineral rights in the
lands underlying the Missouri Riverbed within the Reservation”
and “to collect, deposit and invest, or pay over funds owing” to
the Tribes from the extraction of minerals underlying the
riverbed. Compl. ¶ 89b & c.

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The only remaining question under Rule 24(a)(2) is whether
the district court’s disposition of the Tribes’ suit might “as a
practical matter impair or impede” the State’s ability to protect
its property interest. It is partly on this ground that Interior
opposes the State’s intervention. Interior’s argument is that the
district court “can” – not “must,” not “should,” not “would” –
adjudicate the remainder of the Tribes’ complaint without
impairing the State’s interest in the riverbed and its minerals and
the royalties being held by the State’s lessees. This “can”
happen, Interior says, because the court may avoid the title
question and it “has considerable discretion in deciding whether
to afford injunctive relief” to the Tribes. Rule 24(a)(2),
however, does not require the State to run the risk. Professor
Kaplan, the Reporter on the 1966 revision of Rule 24(a), pointed
out that the new Rule 24(a)(2) “invites us to see that the
practical consequence to the applicants of being denied
intervention is that they cannot stop a settlement nor, if
dissatisfied with the decree entered after contest, press their
contentions on appeal; they are remitted, instead, to subsequent
independent private actions in which it would be hard (although
not impossible) to induce the courts to grant them better relief
than was accorded by the settlement.” Benjamin Kaplan,
Continuing Work of the Civil Committee: 1966 Amendments of
the Federal Rules of Civil Procedure (I), 81 HARV. L. REV. 356,
405 (1967).
We leave to the last the Tribes’ argument on appeal that the
Quiet Title Act, 28 U.S.C. § 2409a, barred the State’s motion to
intervene.5 The district court, in its opinion denying the State’s
supplemental motion to intervene, neither relied upon nor even
mentioned the Quiet Title Act. Because the district court never
5 The Act waives the sovereign immunity of the United States for
actions to decide title to “real property,” but excludes “trust or
restricted Indian lands.” 28 U.S.C. § 2409a(a).

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addressed the Act or sovereign immunity, we leave these matters
for the district court to decide on remand if they become at
issue.6 See Atlantis Dev. Corp. v. United States, 379 F.2d 818,
829 n.34 (5th Cir. 1967) (rejecting the argument that sovereign
immunity barred intervention because that was a matter to be
determined, if at all, “on the merits on remand”).
Reversed and remanded.
6 Because we reverse on other grounds, we do not reach North
Dakota’s arguments regarding permissive intervention.

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P ILLARD, Circuit Judge, concurring: I agree that North
Dakota is entitled to intervene of right, insofar as the Mandan,
Hidatsa, and Arikara Nation seeks in Count IV to compel
Interior “to collect, deposit and invest, or pay over funds” from
the state’s mineral leases. Compl. ¶ 89c (J.A. 32). I admit to
some skepticism that the Nation’s suit could, in North Dakota’s
absence, jeopardize the state’s interest in mineral royalties held
by state lessees; after all, no party identified a theory under
which the Nation could obligate Interior to collect those
royalties in this lawsuit, rather than in some future proceeding.
But the Nation’s complaint says what it says. And Rule
24(a)(2) does not require that the state might be bound as a
matter of res judicata by a judgment in its absence. Rather, a
practical impediment to North Dakota’s interest is enough to
warrant intervention. Thus, so long as the Nation continues to
seek an order to recoup the royalties, I agree that the district
court’s disposition of the Nation’s suit “may as a practical
matter impair or impede” the state’s interest in those royalties.
I write separately to underscore what is (and is not) at issue
in the Nation’s suit. North Dakota claims that the remaining
counts “assert alternative theories to deprive North Dakota of
its title to the bed [of] the Missouri River and underlying
minerals.” N.D. Suppl. Mot. at 2 (S.A. 2). That seems an
overstatement. In its 2022 opinion, Interior reverted to its
longstanding position that the United States holds title to the
historical Missouri riverbed and underlying mineral estate in
trust for the Nation. All the Nation now asks is that Interior
“live[] up to its responsibilities and duties” as trustee. Oral
Arg. 1:26:10-:18. The Nation seeks an “accounting” from
Interior—that is, factual information about riverbed mineral
revenues—and an order directing Interior to “administer and
account” for its mineral rights. Compl. ¶¶ 83, 89b (J.A. 30-31).
Nowhere does the Nation (or, for that matter, Interior) ask the
district court to resolve competing claims over title to the
riverbed. But in Count IV the Nation does ask Interior “to
collect, deposit and invest, or pay over funds owing” to the

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Nation. Id. ¶ 89c (J.A. 32). Carrying out such relief would
seem to require resolving the ownership question in which
North Dakota has an undeniable interest.
While North Dakota is entitled to protect its interests
insofar as they may be implicated by the Nation’s claims
against Interior, the state cannot use the intervention procedure
to transform a suit over Interior’s trust obligations into one over
title to the riverbed. Ordinarily, “[a]n intervenor is admitted to
the proceeding as it stands, and in respect of the pending issues,
but is not permitted to enlarge those issues or compel an
alteration of the nature of the proceeding.” 59 AM. J UR . 2D
Parties § 227 (2023); see, e.g., Ill. Bell Tel. Co. v. FCC, 911
F.2d 776, 786 (D.C. Cir. 1990); Wash. Elec. Coop., Inc. v.
Mass. Mun. Wholesale Elec. Co., 922 F.2d 92, 97 (2d Cir.
1990). The Nation thus might clarify on remand whether its
prayer for relief from Interior stops short of calling for
adjudication of title. And, to prevent North Dakota from
seeking to alter the nature of this suit as the Nation frames it,
the district court may on remand impose “appropriate
conditions or restrictions” on North Dakota’s intervention, as
“responsive among other things to the requirements of efficient
conduct of the proceedings.” Fund for Animals, Inc. v. Norton,
322 F.3d 728, 737 n.11 (D.C. Cir. 2003) (quoting FED. R. C IV.
P. 24(a) Advisory Committee’s Note (1966 amendments)).
Indeed, such restrictions are sometimes necessary to prevent
lawsuits “from becoming fruitlessly complex or unending,”
which would ill serve the policies behind intervention of right.
Smuck v. Hobson, 408 F.2d 175, 179 (D.C. Cir. 1969) (en
banc).

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