U.S. v. State of Or.

• Decision Date: 16 October 1984
• Docket Number: No. 84-3501,84-3501
• Citation: 745 F.2d 550
• Parties: UNITED STATES of America, Plaintiff-Appellee, and The Confederated Tribes and Bands of the Warm Springs Reservation of Oregon; Confederated Tribes and Bands of the Yakima Indian Nation; Confederated Tribes of the Umatilla Indian Reservation; and Nez Perce Tribe of Idaho, Plaintiff-Intervenors, Appellees, v. STATE OF OREGON, Defendant, and State of Washington, Defendant-Intervenor, State of Idaho, Applicant for Intervention-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 550

745 F.2d 550

40 Fed.R.Serv.2d 121

UNITED STATES of America, Plaintiff-Appellee,

and

The Confederated Tribes and Bands of the Warm Springs

Reservation of Oregon; Confederated Tribes and Bands of the

Yakima Indian Nation; Confederated Tribes of the Umatilla

Indian Reservation; and Nez Perce Tribe of Idaho, Plaintiff-Intervenors, Appellees, v. STATE OF OREGON, Defendant, and State of Washington, Defendant-Intervenor, State of Idaho, Applicant for Intervention-Appellant.

No. 84-3501.

United States Court of Appeals, Ninth Circuit.

Argued Sept. 7, 1984.

Submitted Sept. 21, 1984.

Decided Oct. 16, 1984.

Tim Weaver, Hovis, Cockrill, Weaver & Bjur, Takima, Wash., Catherine Wilson, Pendleton, Or., Robert C. Strom, Strom, Longeteig & Johnson, Craigmont, Idaho, Maria A. Iizuka, Dirk D. Snel, Washington, D.C., for plaintiff-appellee.

Stephen V. Goddard, Deputy Atty. Gen., Boise, Idaho, for applicant for intervention-appellant.

Appeal from the United States District Court for the District of Oregon.

Before KILKENNY and SCHROEDER, Circuit Judges, and AGUILAR, ^* District Judge.

SCHROEDER, Circuit Judge.

The State of Idaho appeals from the denial of its petition to intervene as of right in litigation concerning the extent to which the States of Oregon and Washington may regulate fishing in the Columbia River and its tributaries consistent with the treaty rights of several Indian Tribes. Idaho seeks to participate in negotiations for a modified management plan which could have significant impact upon Idaho's fish resources in the upper tributaries of the Columbia River located in Idaho.

Because the district court based its denial upon the conclusion that the application was untimely, some understanding of the history of this litigation is necessary. This action began in 1968 when the United States and members of the Confederated Tribes and Bands of the Yakima Indian Nation filed separate suits against the State of Oregon to define the Indians' treaty right to take fish "at all usual and accustomed places," on the Columbia River and its tributaries. They sought a determination of the extent to which Oregon can regulate fishing after Puyallup Tribe v. Department of Game, 391 U.S. 392, 88 S.Ct. 1725, 20 L.Ed.2d 689 (1968). Four Indian Tribes, including the Yakimas, intervened in the United States' suit as plaintiffs, and the district court consolidated the two actions. Between 1969 and 1976, the tribes invoked the district court's jurisdiction several times, and the court repeatedly encouraged the adoption of a comprehensive plan. In 1974 the State of Washington was permitted to intervene, and in 1977 all parties to the litigation signed, and the district court approved, "A Plan for Managing Fisheries on Stocks Originating from the Columbia River and its Tributaries above Bonneville Dam" (Plan). The Plan had a term of five years.

The phase of the litigation that concerns us began in 1982 when two of the Tribes gave notice of their intent to withdraw from the Plan or to renegotiate it. On September 1, 1983, the district court found that changed circumstances of law and fact made the Plan subject to revision or modification and ordered the parties to attempt to agree upon a revised or modified agreement for allocation and management of Columbia River anadromous fish.

During the week before the district court entered that order, the State of Idaho filed this motion to intervene. The district court denied the motion on the ground that it was not timely. The court recognized that Idaho had an interest in the litigation, but stated that the interest would "be protected adequately at this time by allowing Idaho to participate as amicus curiae."

Under Rule 24(a)(2) of the Federal Rules of Civil Procedure, an applicant with an interest in the subject of the action whose ability to protect that interest may be impaired by the disposition of the action, and whose interest is not adequately represented by other parties, shall be permitted to intervene "upon timely application." ¹ We review the district court's determination of untimeliness for abuse of discretion, NAACP v. New York, 413 U.S. 345, 366, 93 S.Ct. 2591, 2603, 37 L.Ed.2d 648 (1973), bearing in mind that the timeliness requirement for intervention as of right should be treated more leniently than for permissive intervention because of the likelihood of more serious harm. Alaniz v. Tillie Lewis Foods, 572 F.2d 657, 659 (9th Cir.), cert. denied, 439 U.S. 837, 99 S.Ct. 123, 58 L.Ed.2d 134 (1978); see also Westlands Water Dist. v. United States, 700 F.2d 561, 563 (9th Cir.1983) (factors of Rule 24(a) should be construed favorably to intervenor); 7A C. Wright & A. Miller, Federal Practice and Procedure Sec. 1916 (1972).

In determining timeliness, this court has stated that it looks to three factors: (1) the stage of the proceeding; (2) the prejudice to other parties; and (3) the reason for and length of the delay. Petrol Stops Northwest v. Continental Oil Co., 647 F.2d 1005, 1009 (9th Cir.), cert. denied, 454 U.S. 1098, 102 S.Ct. 672, 70 L.Ed.2d 639 (1981); Alaniz, 572 F.2d at 659. Mere lapse of time alone is not determinative. C. Wright & A. Miller, supra, Sec. 1916, at 574. Idaho gives changed circumstance--the possibility of new and expanded negotiations--as a major reason for its attempted intervention at this time. This change of circumstance, which suggests that the litigation is entering a new stage, indicates that the stage of the proceeding and reason for delay are factors which militate in favor of granting the application. Hodgson v. United Mine Workers of America, 473 F.2d 118 (D.C.Cir.1972) (request to intervene as of right after the trial stage allowed where applicants sought to participate in the remedial and appellate phases of the case and agreed not to reopen matters previously litigated); Natural...