Jicarilla Apache Tribe v. Hodel
| Decision Date | 18 June 1987 |
| Docket Number | Nos. 85-1712,85-1713,s. 85-1712 |
| Citation | 821 F.2d 537 |
| Parties | JICARILLA APACHE TRIBE, Plaintiff-Appellant, v. Donald P. HODEL, Secretary of the Interior of the United States of America; Defendant-Appellee, Union Oil Company of California as representatives of a certain class of lessees under oil and gas leases on the Jicarilla Apache Reservation; Amoco Production Company; Apexco, Inc.; Aztec Oil and Gas Company; Benson-Montin-Greer Drilling Corp.; Dugan Production Corporation; Engineering & Production Service; Gulf Oil Corporation; Nassau Resources, Inc.; J.M. Huber Corporation; Kirby Exploration Company; Merrion and Bayless Drilling; Mesa Petroleum Company; North American Exploration Company; Southland Royalty; Sun Oil Company; Tesoro Petroleum Corporation, Defendants, Aquitaine Oil Corporation; Filon Exploration Corporation; Thomas N. Jordan and Trend Exploration, Limited, Additional Party-Defendants, Dome Petroleum Corporation, Applicant in Intervention-Appellant. DOME PETROLEUM CORPORATION, Plaintiff-Appellant, v. Donald P. HODEL, Secretary of Interior of the United States; Leonard Atole; Richard Tecube; Barbara Gonzales; Elote Harrison; Cora Gomez; Freda Havens; Edwin Sandova; Rudy Velarde; Calvin Veneno and Jonathan Wells, all Members of the Jicarilla Apache Tribe of New Mexico, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Daniel H. Israel (Jane E. Archer of Cogswell and Wehrle, Denver, Colo., Richard T.C. Tully, Farmington, N.M., with him on the brief), for Dome Petroleum Corp.
B. Reid Haltom (Robert J. Nordhaus of Nordhaus, Haltom, Taylor & Taradash, Albuquerque, N.M., with him on the brief) for Jicarilla Apache Tribe, Leonard Atole, Richard Tecube, Barbara Gonzales, Elote Harrison, Cora Gomez, Freda Havens, Edwin Sandova, Rudy Velarde, Calvin Veneno, and Jonathan Wells.
Sarah P. Robinson (F. Henry Habicht II, Asst. Atty. Gen., Washington, D.C., William L. Lutz, U.S. Atty., Albuquerque, N.M., Raymond Hamilton, Asst. U.S. Atty., Albuquerque, N.M., Robert L. Klarquist and Martin W. Matzen, Attys., Dept. of Justice, Washington, D.C., on the brief), for Secretary of the Interior of the U.S.
Before LOGAN and ANDERSON, Circuit Judges, and BOHANON, District Judge. *
On April 12, 1976, the Jicarilla Apache Tribe brought suit to cancel certain oil and gas leases on the Jicarilla Apache Reservation because of the failure of the United States Department of the Interior to adequately advertise the lease sales under which the leases were issued. In Jicarilla Apache Tribe v. Andrus, 546 F.Supp. 569 (D.N.M.1980), the United States District Court for the District of New Mexico determined that the lease bonuses in question were undervalued, but that the leases could be preserved through payment of increased bonuses. Id. at 580. We affirmed that part of the district court's decision and remanded the case to the district court for an accounting and a determination of the status of the many leases at issue. Jicarilla Apache Tribe v. Andrus, 687 F.2d 1324 (10th Cir.1982).
On September 10, 1981, while Jicarilla was pending before this court, Dome Petroleum Corporation brought an independent action, seeking to pay adjusted bonuses to preserve its interests in certain oil and gas leases initially awarded by the Department of the Interior as part of the lease sales challenged in the original Jicarilla suit. After this court announced its decision in Jicarilla in 1982 and remanded the case, Dome filed a motion on November 1, 1982, to intervene of right under Fed.R.Civ.P. 24(a), again for the purpose of lodging adjusted bonuses to preserve its oil and gas leases.
Dome's independent lawsuit was dismissed on January 30, 1985, for lack of jurisdiction over the Tribe, an indispensable party. Dome's motion to intervene on remand in Jicarilla was denied by the district court on March 28, 1985, because, inter alia, the motion was untimely.
Dome has appealed both judgments, and we granted Dome's motion to consolidate for purposes of briefing and oral argument. 1 On appeal, Dome claims that it is entitled (1) to intervene as a matter of right in Jicarilla on remand; (2) to pursue the independent action to preserve its leasehold interest; and (3) in the alternative, to receive a refund from the Secretary of the Interior of all payments made with respect to the leases.
We reject Dome's argument that it should be allowed to intervene as a matter of right in Jicarilla on remand. One of the prerequisites to intervention as a matter of right is that it be "timely." Fed.R.Civ.P. 24(a). The district court's determination whether an application is timely is reviewable only under an abuse of discretion standard. Sanguine, Ltd. v. United States Department of the Interior, 736 F.2d 1416, 1418 (10th Cir.1984).
In the instant case, Dome had actual notice of the Jicarilla litigation at least by April 25, 1979, Dome R. I, 22-25, but waited over three and one-half years, until November 1, 1982, before deciding to intervene. 2 The length of this delay, as the district court noted, was exacerbated by the fact that it was a conscious tactical judgment made because Dome did not " 'wish to be exposed to an open-ended series of legal costs.' " Dome R. I, 14-15 (quoting letter of Dome representative, Dome R. I, 25). Although intervention has sometimes been allowed after a final judgment has been entered, see, e.g., Natural Resources Defense Council v. Costle, 561 F.2d 904 (D.C.Cir.1977), intervention now would raise substantial new issues. As the district court noted: "[T]he rights of Dome in the subject leases are contested and, thus, intervention by Dome would necessitate another trial on issues wholly different than those litigated in this Court and set at rest by appeal." Jicarilla R. I, 11. For these reasons, we find no abuse of discretion in the district court's determination that the motion was untimely and we affirm the district court's denial of Dome's motion for intervention of right. 3
We also reject Dome's argument that the district court erred in dismissing its independent action against the Secretary of the Interior. The district court dismissed the suit in part because the Tribe was an essential party to the litigation but was immune from suit: Dome R. I, 20. We agree. 4
The Supreme Court stated in Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978): Id. at 58, 98 S.Ct. at 1677 (quoting United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976)). Although the Tribe's filing of the Jicarilla litigation may have waived its immunity with regard to Dome's intervention in that suit, we cannot construe the act of filing that suit as a sufficiently unequivocal expression of waiver in subsequent actions relating to the same leases. " '[T]he terms of [a sovereign's] consent to be sued in any court define that court's jurisdiction to entertain the suit.' " United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976) (quoting United States v. Sherwood 12 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941)). Waiver of immunity in the present action was not one of the terms of the Tribe's initial suit; it therefore cannot be made a party to this subsequent litigation.
Dome argues, however, that "[e]ven if the Tribe were immune from suit, the Tribe is not an indispensable party in Dome's independent action." Opening Brief of Appellant/Intervenor at 9. But "[n]o procedural principle is more deeply imbedded in the common law than that, in an action to set aside a lease or a contract, all parties who may be affected by the determination of the action are indispensable." Lomayaktewa v. Hathaway, 520 F.2d 1324, 1325 (9th Cir.1975), cert. denied, 425 U.S. 903, 96 S.Ct. 1492, 47 L.Ed.2d 752 (1976). In the independent action the Tribe's interests are directly affected: either Dome will be allowed to pay the Tribe the adjusted bonus and preserve its oil leases or the leases will remain judicially cancelled. The Tribe's interest in the oil leases is thus at the heart of the controversy. For these reasons, we affirm the district court's dismissal of Dome's independent action to pay adjusted bonuses. 5
Finally, in its Second Motion to Amend Judgment dismissing the independent action, Dome proposed an entirely new cause of action and prayer...
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