989 F.2d 994 (8th Cir. 1993), 92-1550, Mille Lacs Band of Chippewa Indians v. State of Minn.

Docket Nº:92-1550, 92-2962.
Citation:989 F.2d 994
Party Name:MILLE LACS BAND OF CHIPPEWA INDIANS; Arthur Gahbow; Walter Sutton; Carleen Benjamin; Joseph Dunkley, Plaintiffs-Appellees, v. STATE OF MINNESOTA; Minnesota Department of Natural Resources; Joseph Alexander, Commissioner of Natural Resources, Defendants, County of Aitkin; County of Benton; County of Chisago; County of Crow Wing; County of Isanti; Co
Case Date:April 05, 1993
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 994

989 F.2d 994 (8th Cir. 1993)

MILLE LACS BAND OF CHIPPEWA INDIANS; Arthur Gahbow; Walter

Sutton; Carleen Benjamin; Joseph Dunkley,

Plaintiffs-Appellees,

v.

STATE OF MINNESOTA; Minnesota Department of Natural

Resources; Joseph Alexander, Commissioner of

Natural Resources, Defendants,

County of Aitkin; County of Benton; County of Chisago;

County of Crow Wing; County of Isanti; County of Kanabec;

County of Mille Lacs; County of Morrison; County of Pine,

Intervenors-Appellants.

MILLE LACS BAND OF CHIPPEWA INDIANS; Arthur Gahbow; Walter

Sutton; Carleen Benjamin; Joseph Dunkley,

Plaintiffs-Appellees,

v.

STATE OF MINNESOTA; Minnesota Department of Natural

Resources; Joseph Alexander, Commissioner, Defendants,

John W. Thompson; Jenny Thompson; Joseph N. Karpen; Leroy

Burling; Glenn E. Thompson; Gary M. Kiedrowski,

Intervenors-Appellants.

Save Lake Mille Lacs, Association, Amicus Curiae.

Nos. 92-1550, 92-2962.

United States Court of Appeals, Eighth Circuit

April 5, 1993

Submitted Dec. 18, 1992.

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[Copyrighted Material Omitted]

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Jeffry Robert Chaffee, Milaca, MN, for intervenors-appellants County of Aitken et al.

Stephen G. Froehle, Minneapolis, MN, for intervenors-appellants John W. Thompson et al.

Marc D. Slonim, John B. Arum, Seattle, WA, on the brief, for plaintiffs-appellees.

Before McMILLIAN, Circuit Judge, LAY, Senior Circuit Judge, and BOWMAN, Circuit Judge.

BOWMAN, Circuit Judge.

This appeal arises out of the District Court's denial of two motions to intervene in litigation between the Mille Lacs Band of Chippewa Indians (the Band) and the State of Minnesota (the state). One motion to intervene was brought by the counties of Aitkin, Benton, Chisago, Crow Wing, Isanti, Kanabec, Mille Lacs, Morrison, and Pine (the counties). 140 F.R.D. 390. The other motion to intervene was brought by John W. Thompson, Jenny Thompson, Joseph N. Karpen, Leroy Burling, Glenn E. Thompson, and Gary M. Kiedrowski (the landowners). Both groups appeal the District Court's denial of their motions to intervene as of right. 1 For the reasons set forth below, we reverse.

I.

The litigation between the Band and the State of Minnesota arises out of a treaty concluded in 1837 between the United States and the Chippewa Nation (the 1837 treaty). Articles of a Treaty, July 29, 1837, U.S.-Chippewa Nation, 7 Stat. 536. Under the terms of that treaty, the Chippewa Nation ceded to the United States a tract of land much of which is located in what is now Minnesota. Id. art. 1. The treaty, however, provided that "[t]he privilege of hunting, fishing, and gathering the wild rice, upon the lands, the rivers and the lakes included in the territory ceded, is guarantied to the Indians, during the pleasure of the President of the United States." Id. art. 5.

The State of Minnesota has adopted natural resource laws that regulate hunting, fishing, and gathering, and has applied these laws to Band members within the ceded territory. In 1990, the Band brought suit in the District Court against the State of Minnesota, the Minnesota Department of Natural Resources, and the Commissioner of the Minnesota Department of Natural Resources alleging that these laws violated Band members' rights under the 1837 treaty. The Band sought a declaratory judgment affirming that the Band retained rights under the 1837 treaty and defining the limits on permissible state regulation of those rights. The Band also sought an injunction barring the State of Minnesota from interfering with Band members' rights under the treaty.

The District Court divided the litigation into two phases. The first phase is intended to resolve the threshold issues of whether the Band retains any rights under the 1837 treaty and whether such rights extend to land that is privately owned. If the first phase results in a finding that the Band does retain rights under the 1837 treaty, a second phase will address the validity of state laws regulating these rights. Under the original schedule for the first phase, all jurisdictional motions and motions seeking

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the addition of parties were to be filed by June 28, 1991, discovery was to be completed by December 31, 1991, and the first phase of the case was to be ready for trial by May 1, 1992. Subsequently, in mid-March 1991, the deadline for discovery was extended to September 25, 1992, and the date when the first phase of the case was to be ready for trial to early 1993.

On July 3, 1991, the counties filed a motion to intervene in the litigation. The counties are nine Minnesota counties, each located partially or entirely within the territory ceded to the United States under the 1837 treaty. The counties assert two principal interests that may be adversely affected by this litigation. First, the counties own certain land outright and they have a beneficial interest in tax-forfeited land that they manage, derive revenue from, and sell; the counties argue that this litigation will affect the use and value of these lands. Second, the counties assert an interest in law enforcement; they argue that recognition of a right of entry onto private lands by persons exercising treaty rights will require the counties to devote additional resources to enforcing trespass laws and will create a likelihood of violence to which the counties will have to respond.

On March 30, 1992, the landowners filed their motion to intervene in the litigation. The landowners are persons with interests in real estate in the ceded territory; these interests include the ownership of homes, of a resort on Lake Mille Lacs, and of woodlands used primarily for hunting. The landowners assert that their interests in land will be adversely affected if the result of the litigation between the Band and the State of Minnesota is a decision that Band members' rights extend to privately owned land. Even absent a result extending treaty rights to privately owned land, however, the landowners assert that they have an interest in this litigation; the landowners claim that if the Band is afforded rights under the 1837 treaty, even on public land, this will deplete fish and game stocks and lower landowners' property values.

The Band opposed both motions to intervene; the state took no position on the motions. The District Court denied both motions. 2 It denied the counties' motion on the ground that the counties had not demonstrated that their interests were inadequately represented in the litigation. It denied the landowners' motion as untimely and on the ground that, like the counties, the landowners had not demonstrated that their interests were inadequately represented in the litigation. Both the counties and the landowners appeal.

II.

The rule governing intervention as of right provides:

Upon timely application anyone shall be permitted to intervene in an action ... when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.

Fed.R.Civ.P. 24(a). We previously have stated that this rule requires that one seeking intervention file a timely application, and that the applicant then satisfy a tripartite test: 1) the party must have a recognized interest in the subject matter of the litigation; 2) that interest must be one that might be impaired by the disposition of the litigation; and 3) the interest must not be adequately protected by the existing parties. Planned Parenthood of Minnesota, Inc. v. Citizens for Community Action, 558 F.2d 861, 869 (8th Cir.1977).

Both the counties and the landowners easily satisfy two of the requirements for intervention as of right. First, both groups have interests in land in the

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ceded territory. The litigation between the Band and the State of Minnesota will determine Band members' rights to hunt, fish, and gather on land throughout the ceded territory, including land the counties and the landowners own. The result of the litigation also may affect the proposed intervenors' property values. See id. (holding that proposed intervenors' interests in protecting their property values are protectable interests). The parties thus have recognized interests in the subject matter of the litigation. Second, a judgment or settlement favorable to the Band may impair those interests, since it may permit Band members to exercise treaty rights upon the proposed intervenors' land. Even if the Band's rights under the 1837 treaty are limited to public land, a resulting depletion in fish and game stocks may reduce the proposed intervenors' property values. See id. ("[i]n order to prevent what they view as an incipient erosion of their property values, the applicants must participate in this litigation").

Whether the counties and the landowners are entitled to intervention of right, then, requires an analysis of two issues. The first issue, raised only in connection with the landowners' attempt to intervene, is whether the motion to intervene was timely. If the landowners' motion was not timely filed, the landowners are barred from intervening. The second issue is whether the counties' and the landowners' interests are being inadequately represented by existing parties. As a general proposition, whether or not a person is entitled to intervention as a matter of right is a question of law that we review de novo. United States v. Metropolitan St. Louis Sewer Dist. (MSD), 883 F.2d 54, 55 (8th Cir.1989). We review the trial court's ruling on the timeliness of a motion to intervene,...

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