Oklahoma v. United States Department of the Interior
| Decision Date | 01 November 2021 |
| Docket Number | Case No. CIV-21-719-F |
| Citation | 569 F.Supp.3d 1155 |
| Parties | State of OKLAHOMA, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF THE INTERIOR, et al., Defendants. |
| Court | U.S. District Court — Western District of Oklahoma |
Bryan G. Cleveland, Jennifer L. Lewis, Mithun S. Mansinghani, Oklahoma Office of Attorney General, Oklahoma City, OK, David C. McSweeney, Pro Hac Vice, Hunton Andrews Kurth LLP, Boston, MA, Elbert Lin, Pro Hac Vice, Hunton Andrews Kurth LLP, Richmond, VA, Lauren A. Bachtel, Pro Hac Vice, Matthew Zane Leopold, Pro Hac Vice, Hunton Andrews Kurth LLP, Washington, DC, Melissa A. Romanzo, Pro Hac Vice, Hunton & Williams LLP, Charlotte, NC, for Plaintiffs Oklahoma State of, Oklahoma Department of Mines, Oklahoma Conservation Commission.
Bryan G. Cleveland, Jennifer L. Lewis, Mithun S. Mansinghani, Oklahoma Office of Attorney General, Ryan T. Leonard, Edinger Leonard & Blakley PLLC, Trevor S. Pemberton, Office of Governor J. Kevin Stitt, Oklahoma City, OK, David C. McSweeney, Pro Hac Vice, Hunton Andrews Kurth LLP, Boston, MA, Elbert Lin, Pro Hac Vice, Hunton Andrews Kurth LLP, Richmond, VA, Lauren A. Bachtel, Pro Hac Vice, Matthew Zane Leopold, Pro Hac Vice, Hunton Andrews Kurth LLP, Washington, DC, Melissa A. Romanzo, Pro Hac Vice, Hunton & Williams LLP, Charlotte, NC, for Plaintiff Kevin Stitt.
Arwyn Carroll, US Dept. of Justice, Washington, DC, Clare Boronow, U.S. DOJ, Environment & Natural Resources Division, Denver, CO, for Defendants.
After the Supreme Court determined in McGirt v. Oklahoma , ––– U.S. ––––, 140 S.Ct. 2452, 207 L.Ed.2d 985 (2020), that the Creek Nation's reservation had never been disestablished, the Department of the Interior and the Office of Surface Mining Reclamation and Enforcement stripped Oklahoma of its ability to regulate surface coal mining activities within the Nation's reservation land. Plaintiffs, the State of Oklahoma and various state agencies and officials, initiated this action to contest defendants’ actions. The Nation now moves to intervene (doc. no. 22) for the exclusive purpose of seeking dismissal of the case. Plaintiffs and defendants each filed a response opposing intervention and the Nation filed a reply (doc. nos. 44, 45, 48). As explained below, the Nation is not entitled to intervene in this case because its interests are adequately represented by the existing parties.
Upending the understanding of the State of Oklahoma, the federal government, and some might even say the Creek Nation itself,1 the Supreme Court in McGirt v. Oklahoma , ––– U.S. ––––, 140 S.Ct. 2452, 207 L.Ed.2d 985 (2020), found that the Creek Nation's reservation in eastern Oklahoma was never disestablished. The specific question before the Court in McGirt was whether the land meets the definition of "Indian Country" for purposes of the Major Crimes Act ("MCA"). Id. at 2459. In holding that it does, the Court recognized that the decision could have "significant consequences for civil and regulatory law" because "many federal civil laws and regulations do currently borrow from [the MCA] when defining the scope of Indian country." Id. at 2480. The dissent was more direct, predicting that the decision would lead to "extensive litigation" over who may exercise regulatory authority on the land. Id. at 2501 (Roberts, C.J. dissenting). This case presents one area where that prediction has come to pass: the Surface Mining Control and Reclamation Act ("SMCRA"), 30 U.S.C. § 1201 et seq.
SMCRA is "a comprehensive statute that regulates all surface coal mining operations." United States v. Navajo Nation , 556 U.S. 287, 300, 129 S.Ct. 1547, 173 L.Ed.2d 429 (2009). It establishes minimum national standards for regulating surface coal mining but permits the states to assume regulatory authority on state lands through the adoption of an approved state regulatory program. 30 U.S.C. § 1253 ; see also, Bragg v. W. Virginia Coal Ass'n , 248 F.3d 275, 288 (4th Cir. 2001). In the absence of a state regulatory program, or where the activities occur on federal land, the federal government is responsible for implementing a regulatory program. 30 U.S.C. §§ 1254, 1273. SMCRA also provides that an Indian tribe may implement its own program regulating surface mining on reservation land. Id. at § 1300(j).
SMCRA is enforced by the Office of Surface Mining Reclamation and Enforcement ("OSMRE"), a federal agency within the Department of the Interior ("DOI"). In the wake of McGirt , OSMRE informed Oklahoma that it could no longer exercise regulatory authority over surfacing mining and reclamation activities within the boundaries of the Creek Nation's reservation because the land now meets the definition of "Indian lands" in SMCRA. According to OSCME, this categorization removes the land from state jurisdiction under SMCRA and, because the Nation does not have its own tribal regulatory program, jurisdictional authority to regulate surface mining defaults to the federal authorities.
Plaintiffs disagree with OSMRE's interpretation of SCMRA and seek injunctive and declaratory relief in this action. They contend that McGirt's holding does not apply to regulation of surface coal mining, that Oklahoma has jurisdiction under SMCRA to regulate surface coal mining activities within the boundaries of the Creek reservation, and that defendant's actions violated the Administrative Procedures Act ("APA"). The Nation seeks to intervene under Rule 24 both as of right and permissively. Interestingly, the Nation does not seek intervention for the purpose of advancing additional argument on the substantive issues raised in the Complaint. Instead, the Nation seeks to intervene for the exclusive purpose of seeking dismissal of this action on the grounds that it is a required party under Rule 19 that cannot be joined due to its sovereign immunity. Plaintiffs and defendants both object to the proposed intervention, arguing that the Nation's interests in this case are adequately represented by defendants.
Dismissal, as the Nation seeks, would, as a practical matter, mean that a federal court is powerless to adjudicate serious issues as to the authority of a federal agency, charged with responsibility for administration of a program created by a federal statute (and funded in part with sizeable annual grants of federal funds), to terminate the state's participation in that federal program. That, in turn, would mean that, as a practical matter, there would be no forum in which the state could seek an adjudication of the legality of the federal actions it complains of in this action. Strictly speaking, these facts are determinative of nothing with respect to the motion now before the court. But they provide context.
Rule 24 of the Federal Rules of Civil Procedure provides for intervention as of right for anyone who, on timely motion "claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest." Fed.R.Civ.P. 24(a)(2). The Tenth Circuit "has historically taken a liberal approach to intervention" and views the burden on the proposed intervenor as "minimal." Kane Cty., Utah v. United States , 928 F.3d 877, 890-891 (10th Cir. 2019). But the Tenth Circuit has also cautioned that "one must be careful not to paint with too broad a brush in construing Rule 24(a)(2)." San Juan Cty., Utah v. United States , 503 F.3d 1163, 1199 (10th Cir. 2007) (abrogated on other grounds). Rule 24 "is not a mechanical rule" but instead "requires courts to exercise judgment based on the specific circumstances of the case." Id. Thus, even where an applicant shows "an interest that could be adversely affected by the litigation," a court must apply "practical judgment ... in determining whether the strength of the interest and the potential risk of injury to that interest justify intervention." Id.
Rule 24 also provides for permissive intervention where the potential intervenor shows that it "has a claim or defense that shares with the main action a common question of law or fact." Fed.R.Civ.P. 24(b)(1)(B). In exercising its discretion to allow permissive intervention, Rule 24 further instructs that "the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties’ rights." Id. at § 24(b)(3).
The Nation asserts that it is entitled to intervene in this action because issues relating to its sovereignty and regulatory jurisdiction are at stake and the current parties will not adequately represent those interests. As there is no dispute that the Nation's motion to intervene is timely, the court considers only (1) whether the Nation has an interest that may, as a practical matter, be impaired or impeded by the disposition of the litigation; and (2) whether the existing parties will adequately represent its interest. See WildEarth Guardians v. U.S. Forest Serv. , 573 F.3d 992, 995 (10th Cir. 2009).
Rule 24 ’s interest requirement "is primarily a practical guide to disposing of lawsuits by involving as many apparently concerned persons as is compatible with efficiency and due process." Utah Ass'n of Ctys. v. Clinton , 255 F.3d 1246, 1251–52 (10th Cir. 2001) (internal quotation omitted). To meet this requirement, "an applicant ‘must have an interest that could be adversely affected by the litigation.’ " Kane Cty. , 928 F.3d at 891 (quoting San Juan Cty. , 503 F.3d at 1199 ). Importantly, the interest "is measured in terms of its relationship to the property or transaction that is the subject of the action, not in terms of the particular issue before the district court." WildEarth Guardians v. National Park Service , 604 F.3d 1192, 1198 (10th Cir. 2010). A mere...
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