                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA
_______________________________
                                 )
CALIFORNIA VALLEY MIWOK TRIBE, )
et al.,                          )
                                 )
          Plaintiffs,            )
                                 )
          v.                     )   Civil Action No. 11-160 (RWR)
                                 )
KEN SALAZAR, et al.,             )
                                 )
          Defendants.            )
_______________________________ )

                   MEMORANDUM OPINION AND ORDER

     This matter is a dispute over the U.S. Department of the

Interior’s determination of the legitimate government and

membership of the California Valley Miwok Tribe (“Tribe”), a

federally recognized Indian tribe.   Defendants are Secretary of

the Interior Ken Salazar, Assistant Secretary for Indian Affairs

Larry Echo Hawk, and Director of the Bureau of Indian Affairs

Michael Black.   Plaintiffs Yakima Dixie, Velma WhiteBear, Antonia

Lopez, Michael Mendibles, Evelyn Wilson, and Antoine Azevedo

bring suit individually and on behalf of the Tribe and its Tribal

Council, arguing that the defendants’ decision to recognize a

General Council led by Sylvia Burley as the legitimate government

of the Tribe, and to discontinue efforts to adjudicate the status

of other putative tribal members, constituted arbitrary and

capricious agency action, in violation of the Administrative

Procedure Act (“APA”), 5 U.S.C. § 706(2)(A), and also violated

due process and the Indian Civil Rights Act (“ICRA”), 25 U.S.C.
                                 - 2 -

§ 1301, et seq.     Another group representing the Tribe, as

organized in the form of the General Council, moves to intervene

as a defendant in this action for the limited purpose of filing a

motion to dismiss, arguing that intervention is necessary to

protect its fundamental interests in defending its sovereignty

and defining its citizenship.1    Because the proposed intervenor

satisfies the requirements for intervention as of right under

Federal Rule of Civil Procedure 24(a)(2), the motion to intervene

will be granted.2

                              BACKGROUND

     The leadership and membership of the California Valley Miwok

Tribe have been in dispute for over a decade.    The Federally

Recognized Indian Tribe List Act of 1994, Pub. L. 103-454,

included the California Valley Miwok Tribe as a federally

recognized tribe.    In 1998, the Department of the Interior’s

Bureau of Indian Affairs (“Bureau”) initiated efforts to

facilitate reorganizing the Tribe under the Indian Reorganization

Act of 1934 (“IRA”), 25 U.S.C. §§ 461-479.    A tribe whose

government is organized according to the IRA’s procedural and

substantive requirements qualifies for certain federal benefits


     1
       Both the plaintiffs and the proposed intervenor use the
name “California Valley Miwok Tribe.” To avoid confusion, the
terms “plaintiffs” and “proposed intervenor” will be used when
discussing the respective parties’ positions here.
     2
       In light of the decision to grant the motion under Rule
24(a)(2), the parties’ arguments regarding permissive
intervention will not be addressed.
                               - 3 -

and may maintain government-to-government relations with the

United States and with state and local governments.    The Bureau

identified plaintiff Yakima Dixie, then serving as tribal

chairperson, Sylvia Burley, the present leader of the proposed

intervenor, along with several others, as members of the Tribe

who were able to participate in the reorganization (First Am.

Compl., Ex. A., August 31, 2011 letter from Assistant Secretary

of Indian Affairs (“August 31 decision”) at 4).     See also

California Valley Miwok Tribe v. United States, 424 F. Supp. 2d

197, 198 (D.D.C. 2006) (“CVMT I”) (reviewing Tribe’s

reorganization process).   The Bureau recommended that the Tribe

establish a general council form of government for the

organization process.   (August 31 decision at 4.)   Following this

recommendation, the Tribe established the General Council by

resolution in 1998 and began to develop a draft constitution.

(Id.)   Plaintiffs dispute the validity of the resolution,

alleging that it did not receive the approval of the required

number of members.   (First Am. Compl. ¶¶ 43-47.)

     Soon afterwards, leadership disputes between Dixie and

Burley developed within the Tribe.     (August 31 decision at 4;

First Am. Compl. ¶¶ 48-50.)   In 2004, the Bureau declined to

approve a constitution submitted by Burley because she had not

involved the “whole tribal community” in the organizational

process.   (August 31 decision at 4; First Am. Compl. ¶¶ 51-53.)

It also issued a communication stating that it did not view the
                                - 4 -

Tribe as “organized” under the IRA and that it did not recognize

anyone as chairperson, though it recognized Burley as a “person

of authority” within the Tribe.   (See August 31 decision at 4;

First Am. Compl. ¶¶ 54-56.)   See also CVMT I, 424 F. Supp. 2d at

200 (D.D.C. 2006).    In 2005, Burley and her supporters brought

the CVMT I suit in the name of the Tribe challenging the

Secretary of the Interior’s refusal to approve the constitution.

(See August 31 decision at 4; First Am. Compl. ¶ 58.)    The D.C.

Circuit upheld the district court’s finding that the Secretary

had the authority to decline to approve the constitution on the

grounds that it did not enjoy support from the majority of the

tribe’s membership.   California Valley Miwok Tribe v. United

States, 515 F.3d 1262, 1263 (D.C. Cir. 2008).    During the period

of disputed leadership, Dixie and other members of a tribal

council endeavored to identify and organize potential members of

the tribe.   (First Am. Compl. ¶¶ 65-70.)   The Bureau assisted by

publishing a notice seeking genealogies and other information

from potential Tribal members, among other efforts to identify

individuals entitled to participate in the reorganization

process.   (First Am. Compl. ¶¶ 71-74.)   Burley and her supporters

did not participate in these activities but challenged the

reorganization process through administrative appeals within the

Bureau.    (First Am. Compl. ¶¶ 75-77.)

     On December 22, 2010, the Assistant Secretary for Indian

Affairs issued a decision, addressing Burley’s appeals, in which
                                - 5 -

it concluded that the Tribe was organized as the General Council

under the resolution adopted in 1998 and that the Bureau would

cease efforts to facilitate reorganization.     (Compl., Ex. C,

December 22, 2010 letter from Assistant Secretary of Indian

Affairs.)   The plaintiffs then initiated this action challenging

the legality of the decision.   In April of 2011, the Assistant

Secretary granted reconsideration and sought briefing from Dixie,

Burley, and their respective supporters.     (August 31 decision at

1.)   The Assistant Secretary reinstated his prior decision on

August 31, 2011, but stayed its effectiveness pending resolution

of this litigation.   (Id. at 8.)    The Assistant Secretary

represented that at present, the recognized citizenship of the

Tribe consists of Dixie, Burley, Rashel Reznor, Anjelica Paulk,

and Tristian Wallace.3

      The first amended complaint alleges that the Assistant

Secretary presented no reasoned explanation for the Bureau’s

reversal of its previous positions that the Tribe was not yet

organized in accordance with the IRA and in support of

identifying additional tribal members to participate in

reorganization.   The plaintiffs therefore allege that the

decision was arbitrary and capricious under the APA, as well as a

violation of due process and ICRA.      (First Am. Compl. ¶¶ 90-119.)



      3
       According to the plaintiffs, “Reznor, Paulk, and Wallace
are Burley’s daughters and granddaughter, respectively.” (First
Am. Compl. at 21 n.1.)
                                 - 6 -

The plaintiffs allege that they have been harmed by the Assistant

Secretary’s action because they have been denied the opportunity

to participate in reorganization and governance of the Tribe;

they are not and will not be eligible to receive federal health,

education and other benefits provided to members of recognized

Indian Tribes; and the decision could provide a basis for Burley

to divert funds held in trust for the Tribe by the State of

California and paid by the California Gambling Control Commission

to tribes that do not operate casinos or gaming devices, and to

divert federal grant funds.    (First Am. Compl. ¶¶ 82-89.)   The

plaintiffs seek declaratory and injunctive relief including an

order vacating the August 31 decision and directing the Assistant

Secretary “to establish government-to-government relations only

with a Tribal government that reflects the entire Tribal

community, including individual Plaintiffs and all other Current

Members.”    (First Am. Compl. at 30.)   The plaintiffs also seek an

order enjoining the defendants from awarding any federal funds to

Burley.    (Id.)   The defendants have answered the amended

complaint.

         The proposed intervenor moved to intervene as a defendant

in the action for the limited purpose of filing a motion to

dismiss for lack of subject matter jurisdiction, for failure to

join an indispensable party, and for failure to state a claim.4


     4
       The proposed intervenor’s first motion to intervene was
fully briefed before the Assistant Secretary granted
                                 - 7 -

The proposed intervenor argues that intervention as of right is

warranted because the complaint “involves an attempt to forcibly

expand the Tribe’s citizen[ship] and alter its relationship with

the United States, directly implicating the Tribe’s sovereign

responsibility to determine its own citizenship and resolve its

own internal affairs.”    (Proposed Intervenor-Defendant’s Am. Mot.

for Leave to Intervene as Defendant (“Mot. to Intervene”) at 3.)

The plaintiffs oppose on the grounds that the proposed intervenor

fails to demonstrate that its interests are not protected

adequately by the federal defendants.      (Pls.’ Opp’n to Mot. to

Intervene (“Pls.’ Opp’n”) at 3-4.)       The federal defendants take

no position on the motion to intervene.      (Mot. to Intervene at 3

n.2.)

                              DISCUSSION

        Intervention as a matter of right should be granted when the

movant “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




reconsideration of his December 22, 2010 decision. Following
reinstatement of that decision, the proposed intervenor filed an
amended motion to intervene. This opinion cites to the second
round of briefing on intervention. In the amended motion to
intervene, the proposed intervenor presents a lengthy recitation
of the factual background, as well as arguments going to the
merits of the motion to dismiss it intends to file. Because it
is not necessary to the resolution of the motion to intervene,
these arguments are not addressed.
                                - 8 -

existing parties adequately represent that interest.”   Fed. R.

Civ. P. 24(a)(2).    Evaluating Rule 24(a)(2), the D.C. Circuit has

“identified four prerequisites to intervene as of right: ‘(1) the

application to intervene must be timely; (2) the applicant must

demonstrate a legally protected interest in the action; (3) the

action must threaten to impair that interest; and (4) no party to

the action can be an adequate representative of the applicant’s

interests.’”    Karsner v. Lothian, 532 F.3d 876, 885 (D.C. Cir.

2008) (quoting SEC v. Prudential Sec. Inc., 136 F.3d 153, 156

(D.C. Cir. 1998)).   Importantly, “a party seeking to intervene as

of right must demonstrate that it has standing under Article III

of the Constitution.”    Fund For Animals, Inc. v. Norton, 322 F.3d

728, 731-32 (D.C. Cir. 2003); see Defenders of Wildlife v.

Jackson, Civil Action No. 10-1915 (RWR), 2012 WL 896141, at *4

(D.D.C. March 18, 2012) (discussing view that Article III

standing and Rule 24(a)(2) interest requirements are additive,

and view that any party who satisfies Rule 24(a) will also meet

Article III’s standing requirement).

I.   STANDING

     The plaintiffs do not contest the proposed intervenor’s

standing to intervene.   However, this threshold issue will be

addressed since a party’s Article III standing is a prerequisite

to subject matter jurisdiction.   See Fund For Animals, Inc., 322

F.3d at 732.    “To establish standing under Article III, a

prospective intervenor –- like any party -- must show: (1)
                               - 9 -

injury-in-fact, (2) causation, and (3) redressability.”     Id. at

732-33.   The proposed intervenor easily meets these requirements.

If the plaintiffs prevail in this action, the Assistant

Secretary’s August 31 decision will be vacated, the Bureau will

be ordered to cease government-to-government relationships with

the Tribe as organized in the form of the General Council, and

the defendants will be enjoined from awarding any federal funds

to Burley.   These actions are concrete and particularized

injuries to the proposed intervenor’s financial resources and

governmental integrity.   The causation prong is satisfied because

the threatened loss of sovereignty and funds is fairly traceable

to the agency action that the plaintiffs seek to compel in the

instant action.   Finally, a decision in the proposed intervenor’s

favor would leave the August 31 decision undisturbed and thereby

prevent the injuries from occurring, satisfying the

redressability prong.

II.   RULE 24(a)(2) REQUIREMENTS

      The proposed intervenor also meets each of the four

requirements for intervention as a matter of right.   First, the

proposed intervenor’s motion was timely, as it was initially

filed “less than two months after the plaintiffs filed their

complaint and before the defendants filed an answer.”   Fund For

Animals, Inc., 322 F.3d at 735.    Second, the proposed intervenor

has shown a legally protected interest in the matter since, in

this Circuit, “satisfying constitutional standing requirements
                               - 10 -

demonstrates the existence of a legally protected interest.”

Jones v. Prince George’s County, 348 F.3d 1014, 1019 (D.C. Cir.

2003) (citing Mova Pharm. Corp. v. Shalala, 140 F.3d 1060, 1076

(D.C. Cir. 1998)).   Third, plaintiffs’ action “threaten[s] to

impair,” Karsner, 532 F.3d at 885, the proposed intervenor’s

legally protected interest because resolution of the matter in

the plaintiffs’ favor would directly interfere with the

governance of the Tribe as currently recognized and preclude

access to federal funds.    The plaintiffs appear to concede that

the above three requirements are met as they presented no

arguments on these points in their opposition.

     The basis of the plaintiffs’ opposition to intervention

concerns the fourth requirement, the adequacy of existing

parties’ representation of the proposed intervenor’s interests.

The proposed intervenor argues that the federal defendants do not

adequately represent its interests since the federal defendants

may make different arguments from those of the proposed

intervenor, the proposed intervenor’s stake in the litigation

differs from that of the defendants, the defendants may not

choose to appeal an adverse judgment, and the proposed intervenor

will provide necessary information to the proceedings that the

defendants might neglect.   (Stmt. of P. & A. in Supp. of Proposed

Intervenor-Defendant’s Mot. to Intervene (“Proposed Intervenor’s

Stmt.”) at 22-23.)   The plaintiffs counter that the federal

defendants adequately represent the proposed-intervenor’s
                                - 11 -

interests because both seek the same “ultimate objective,” that

is, upholding the August 2011 Decision.   (Pls.’ Opp’n at 3.)

     The D.C. Circuit has emphasized repeatedly that the standard

to demonstrate inadequacy of representation is lenient.    See Fund

For Animals, Inc., 322 F.3d at 736 n.7 (concluding that Supreme

Court precedent “makes clear that the standard for measuring

inadequacy of representation is low”); Dimond v. District of

Columbia, 792 F.2d 179, 192 (D.C. Cir. 1986) (describing burden

as “not onerous”); United States v. American Tel. & Tel. Co., 642

F.2d 1285, 1293 (D.C. Cir. 1980) (recognizing view that a movant

“ordinarily should be allowed to intervene unless it is clear

that the party will provide adequate representation for the

absentee”) (internal quotations omitted).    In addition, the

Circuit has expressed skepticism that United States governmental

entities, with their unique obligations to the serve general

public, can be found to adequately represent the interests of

potential intervenors.   See Fund For Animals, Inc., 322 F.3d at

736 & n.9 (collecting cases).

     That skepticism is warranted here.     The federal defendants’

interest in this action is to defend the Assistant Secretary’s

decision as lawful agency action.    By contrast, the proposed

intervenor possesses a distinct and weighty interest in

protecting its governance structure and its entitlement and

access to federal grant monies.    Because the federal defendants

do not share these concerns, their defense of this action may not
                              - 12 -

adequately represent the proposed intervenor’s interests.    See

Hardin v. Jackson, 600 F. Supp. 2d 13, 16 (D.D.C. 2009) (“The

D.C. Circuit has frequently found ‘inadequacy of governmental

representation’ when the government has no financial stake in the

outcome of the suit.”) (quoting Dimond, 792 F.2d at 192).5

     The purpose for which the proposed intervenor seeks to

participate in the case reflects the proposed intervenor’s

distinct aim of asserting its sovereign interests.   The federal

defendants, and the plaintiffs, anticipate that the case may be

resolved on cross-motions for summary judgment and the

administrative record.   (See Joint Mot. for Briefing Schedule.)

The proposed intervenor, however, seeks intervention for the

limited purpose of moving to dismiss on several grounds,

including lack of jurisdiction to adjudicate internal tribal

disputes and failure to state a claim, a tactic the federal



     5
       Plaintiffs propose a different standard employed in the
Ninth Circuit according to which “[w]here the party and the
proposed intervenor share the same ultimate objective, a
presumption of adequacy of representation applies, and the
intervenor can rebut that presumption only with a compelling
showing to the contrary.” Perry v. Proposition 8 Official
Proponents, 587 F.3d 947, 951 (9th Cir. 2009) (internal
quotations omitted). The D.C. Circuit has not endorsed this
articulation of the intervention standard, and cases in the
Circuit have been “inconsistent as to who bears the burden with
respect to [the adequacy of representation] factor.” Fund For
Animals, Inc., 322 F.3d at 736 n.7. Although both defendants and
the proposed intervenor oppose invalidating the August 31
decision, they do so for different reasons and their respective
stakes in the matter differ greatly. The standard for finding
inadequate representation here is satisfied regardless of who
bears the burden.
                               - 13 -

defendants have not pursued.   See Proposed Intervenor-Defendant’s

Reply to Pls.’ Opp’n (“Proposed Intervenor-Defendant’s Reply”) at

7 (asserting that defendants’ representation is demonstrably not

adequate because “[s]trong grounds exist for dismissal of

Plaintiffs’ Amended Complaint on Rule 12(b)(1) and Rule 12(b)(6)

grounds, but the United States failed to seek such a dismissal”).

The plaintiffs argue that the choice of a “different procedural

mechanism for seeking judicial affirmance of the agency decision

does not mean that the government is not adequately representing

the prospective intervenor’s interests.”   (Pls.’ Opp’n at 4.)

     A difference in litigation strategies does not always

demonstrate an insufficiently coterminous relationship between a

potential intervenor and an existing party.   Here, however, the

divergence highlights that the proposed intervenor’s

conceptualization of the action, as an internal tribal dispute

not amenable to resolution in a federal judicial forum, is not

shared by the defendants.   In an important regard, then, the

proposed-intervenor does not seek “judicial affirmance” that the

agency decision was not arbitrary and capricious or otherwise

unlawful; it seeks to persuade “this Court to refrain from

presiding over a procedurally defective Amended Complaint and

rendering a ruling on the merits in an action over which it lacks

jurisdiction.” (Proposed Intervenor-Defendant’s Reply at 3.)     For

the foregoing reasons, the defendants do not adequately represent

the proposed intervenor’s interest in protecting its current
                              - 14 -

governmental structure and its ability to define its membership

independently.

                       CONCLUSION AND ORDER

     Because all four requirements of Rule 24(a)(2) are met, the

proposed intervenor is entitled to intervention as of right.    The

plaintiffs ask that, if intervention is granted, the filing of

the motion to dismiss be coordinated with the briefing and

resolution of the parties’ cross motions for summary judgment.

(Pls.’ Opp’n at 5.)   Accordingly, it is hereby

     ORDERED that the proposed intervenor-defendant’s amended

motion [35] for leave to intervene as defendant be, and hereby

is, GRANTED.   The Clerk’s Office is directed to docket Exhibits 3

through 7 to the proposed intervenor-defendant’s amended motion

for leave to intervene as the intervenor-defendant’s motion to

dismiss the plaintiffs’ first amended complaint.   It is further

     ORDERED that the proposed intervenor-defendant’s motion [36]

to expedite consideration of its motion for leave to intervene

be, and hereby is, GRANTED.   It is further

     ORDERED that the parties’ joint motion [41] to extend time

for plaintiffs to request supplementation of the administrative

record be, and hereby is, GRANTED nunc pro tunc.   It is further

     ORDERED that the parties’ amended joint motion for briefing

schedule [47] for cross motions for summary judgment be, and

hereby is, GRANTED nunc pro tunc, and the parties’ joint motion
                              - 15 -

[38] for briefing schedule for cross motions for summary judgment

be, and hereby is, DENIED as moot.     It is further

     ORDERED that the parties and the intervenor shall meet and

confer and file by April 4, 2012 a joint status report and

proposed order reflecting deadlines for opposing and replying in

support of the intervenor’s motion to dismiss and proposing any

necessary amendments to the briefing schedule for cross motions

for summary judgment.

     SIGNED this 26th day of March, 2012.


                                        /s/
                              RICHARD W. ROBERTS
                              United States District Judge
