Mattaponi Indian Tribe v. MARINE RES. COM'N
Decision Date | 01 March 2005 |
Docket Number | Record No. 0846-04-1. |
Citation | 609 S.E.2d 619,45 Va.App. 208 |
Parties | MATTAPONI INDIAN TRIBE and Carl T. Lone Eagle Custalow, Assistant Chief v. VIRGINIA MARINE RESOURCES COMMISSION and The City of Newport News. |
Court | Virginia Court of Appeals |
Eric D. Albert (Hope M. Babcock; David S. Bailey, Manassas; Georgetown University Law Center Institute for Public Representation; David S. Bailey, P.L.L.C., on briefs), for appellants.
John K. Byrum, Jr., Assistant Attorney General (Jerry W. Kilgore, Attorney General; Roger L. Chaffe, Senior Assistant Attorney General; Carl Josephson, Assistant Attorney General, on brief), for appellee Virginia Marine Resources Commission.
George A. Somerville (James E. Ryan, Jr., Richmond; M. Scott Hart, Virginia Beach; Stuart E. Katz, City Attorney; Allen L. Jackson, Chief Deputy City Attorney; Troutman Sanders, L.L.P., Richmond, on brief), for appellee City of Newport News.
Present: HUMPHREYS, KELSEY, JJ., and ROSENBLATT, Retired Judge.1
This appeal presents the question whether a settlement agreed to by all litigants before the circuit court, consummated by the entry of a consent dismissal order, moots appellate review of the circuit court's earlier denial of the appellant's motion to intervene. Under the circumstances of this case, we hold that it does.
In 1993, the City of Newport News applied for a permit from the Virginia Marine Resources Commission (VMRC) seeking permission to install a raw water intake on state-owned bottomlands in the Mattaponi River. A decade later, in 2003, the VMRC denied the permit, prompting Newport News to file an appeal to the circuit court under the Virginia Administrative Process Act (VAPA), Code § 2.2-4000 et seq. Newport News challenged the VMRC's decision, as well as the administrative procedures used to reach it.
The Mattaponi Indian Tribe and Chief Carl T. Lone Eagle Custalow (collectively, the Tribe) filed a motion to intervene in the circuit court VAPA appeal, seeking to defend the VMRC's permit denial. The Tribe argued, among others things, that the VMRC had no choice but to deny the permit — because granting it, the Tribe argued, would have violated tribal rights under the 1677 Treaty at Middle Plantation. See generally Mattaponi Indian Tribe v. Commonwealth, 43 Va.App. 690, 697-98, 601 S.E.2d 667, 671 (2004)
.
The circuit court denied the motion to intervene, finding the Tribe's assertions insufficient to warrant permissive intervention under Rule 2:15 or the VAPA.2 The Tribe filed an interlocutory appeal seeking appellate review of the circuit court's order denying intervention. We dismissed the appeal as outside our jurisdiction under Code § 17.1-405. Mattaponi Indian Tribe v. Va. Marine Res. Comm'n, 43 Va.App. 728, 601 S.E.2d 686 (2004).
Newport News and the VMRC later agreed to settle the case. The settlement called for a remand of the permit application back to the VMRC for reconsideration pursuant to various agreed-upon procedures. In "accordance with" the settlement, the circuit court dismissed the VAPA appeal and remanded the matter to the VMRC "for further proceedings to be conducted as specified in the parties' settlement agreement." Following the entry of the final order, the Tribe filed this appeal challenging the circuit court's decision denying the motion to intervene.
Newport News and the VMRC contend their settlement and consent dismissal order moot any justiciable appellate controversy over the circuit court's denial of the Tribe's intervention motion. Even if the Tribe should have been allowed to intervene in the circuit court VAPA case, Newport News and the VMRC point out, that proceeding no longer exists — nor does the underlying dispute prompting the litigation. We find this reasoning persuasive.
Having settled their dispute, agreed to a final dismissal order, and forgone any further appeals, Newport News and the VMRC achieved perhaps the highest form of finality the law can give. To permit a putative intervenor to reopen this case, thereby forcing the settling litigants to continue litigating against their will, would be hardly in keeping with the principles of repose which normally accompany a final settlement. See Sierra Club, Inc. v. EPA, 358 F.3d 516, 518 (7th Cir.2004)
(). To be sure, it "has never been supposed that one party — whether an original party, a party that was joined later, or an intervenor — could preclude other parties from settling their own disputes." Lawyer v. Dep't of Justice, 521 U.S. 567, 578-79, 117 S.Ct. 2186, 2193-94, 138 L.Ed.2d 669 (1997).
For these reasons, absent the assertion of an independent claim, "a permissive intervenor may not breathe life into a non-existent lawsuit." Horn v. Eltra Corp., 686 F.2d 439, 442 n. 2 (6th Cir.1982) (quoting McKay v. Heyison, 614 F.2d 899, 906 (3d Cir.1980)) (internal quotation marks omitted). When "there is no longer any action in which appellants can intervene, judicial consideration of the question would be fruitless." United States v. Ford, 650 F.2d 1141, 1143 (9th Cir.1981) ( ). Under these circumstances, "an intervenor cannot keep a lawsuit alive which the original parties wish to end." Citibank, N.A. v. State, 599 N.W.2d 402, 405 (S.D.1999) (citation omitted); see also State ex rel. United States Steel Corp. v. Ross, 22 Ohio St.3d 85, 488 N.E.2d 876 (1986)
(. )
We acknowledge that a final order, even when the product of a settlement, may be upended on appeal by intervenors denied admission into a proceeding in which they had an inviolate statutory or common law right to participate. See, e.g., Cont'l Baking Co. v. Charlottesville, 202 Va. 798, 803, 120 S.E.2d 476, 478 (1961)
(. ) But that is not the situation here. Nothing in Rule 2:15, the VAPA, or the enabling statutes for the VMRC gives the Tribe the right to intervene. As the Tribe acknowledges,3 its best argument relies on principles of permissive intervention — a matter within the sound discretion of the circuit court. See generally Hudson v. Jarrett, 269 Va. 24, 606 S.E.2d 827 (2005) ( ); Kent Sinclair & Leigh B. Middleditch, Jr., Virginia Civil Procedure § 9.13, at 409 (3d ed. 1998) ( ).
Finally, we also reject the Tribe's argument that any decision by the VMRC (granting or denying the permit) or by the circuit court (reviewing that decision on appeal under the VAPA) could prejudice any legally enforceable rights the Tribe has under the 1677 Treaty at Middle Plantation — thus presenting the Tribe with this one and only opportunity to vindicate its tribal rights under the treaty. Though the VMRC may consider any matter within its statutory mandate, it had no administrative jurisdiction to adjudicate the Tribe's treaty rights. See Mattaponi Indian Tribe, 43 Va.App. at 708-09,
601 S.E.2d at 676 ( ); see also Zappulla v. Crown, 239 Va. 566, 571, 391 S.E.2d 65, 68 (1990) (...
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