                        United States Court of Appeals
                                 FOR THE EIGHTH CIRCUIT
                                     ________________

                                        No. 01-3611
                                     ________________

State of South Dakota, By and                *
Through its Attorney General,                *
Mark Barnett; City of Oacoma;                *
Lyman County,                                *      Appeal from the United States
                                             *      District Court for the
               Appellees,                    *      District of South Dakota.
                                             *
       v.                                    *
                                             *
United States Department of                  *
Interior; Cora Jones, Regional               *
Director, Great Plains Regional              *
Office, BIA; Cleve Her Many                  *
Horses, Superintendent, Lower                *
Brule Agency, BIA; James                     *
McDivitt, Deputy Assistant                   *
Secretary-Indian Affairs,                    *
                                             *
               Appellees.                    *
                                             *
---------------------------------------      *
                                             *
Lower Brule Sioux Tribe,                     *
                                             *
               Appellant.                    *

                                     ________________

                                     Submitted: October 7, 2002
                                         Filed: February 3, 2003
                                     ________________
Before HANSEN, Chief Judge, HEANEY and MORRIS SHEPPARD ARNOLD,
      Circuit Judges.
                          ________________

HANSEN, Circuit Judge.

       The State of South Dakota, City of Oacoma, and Lyman County (hereinafter,
collectively "South Dakota") brought an action for declaratory and injunctive relief
against the United States Department of Interior, the Assistant Secretary for Indian
Affairs, the Regional Director, and the Superintendent of the Lower Brule Agency
(hereinafter, collectively "United States"). South Dakota sought to prevent the United
States from placing approximately 91acres of land located outside the Lower Brule
Reservation into trust on behalf of the Lower Brule Sioux Tribe (hereinafter "Tribe").
Pursuant to Federal Rule of Civil Procedure 24, the Tribe moved to intervene both as
a matter of right and for permissive intervention. The United States supported the
Tribe's bid for permissive intervention but opposed its motion for intervention as a
matter of right. The district court1 denied the Tribe's motions. The Tribe appeals,
and we affirm the judgment of the district court.2

       We first turn to the question of whether the district court erred in denying the
Tribe's motion to intervene as a matter of right. We review this decision de novo,


      1
       The Honorable Richard H. Battey, United States District Judge for the District
of South Dakota.
      2
        The denial of a motion to intervene of right is immediately appealable as a
final judgment. Corby Recreation, Inc. v. Gen. Elec. Co., 581 F.2d 175, 176 n.1 (8th
Cir. 1978). We have pendent appellate jurisdiction to review the order denying
permissive intervention. See, e.g., Curry v. Regents of the Univ. of Minn., 167 F.3d
420, 422 (8th Cir. 1999) (reviewing order denying motion for permissive
intervention); see also In Re Vitamins Antitrust Class Actions, 215 F.3d 26, 31 (D.C.
Cir. 2000) (concluding court had appellate jurisdiction where question of permissive
intervention was inextricably intertwined with question of intervention of right).
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keeping in mind that Rule 24 should be liberally construed with all doubts resolved
in favor of the proposed intervenor. Turn Key Gaming, Inc. v. Oglala Sioux Tribe,
164 F.3d 1080, 1081 (8th Cir. 1999).

      Rule 24 provides that:

      [u]pon 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). In short, the Rule provides that a party seeking mandatory
intervention must establish that: (1) it has a recognized interest in the subject matter
of the litigation; (2) the interest might be impaired by the disposition of the case; and
(3) the interest will not be adequately protected by the existing parties. Chiglo v. City
of Preston, 104 F.3d 185, 187 (8th Cir. 1997). A proposed intervenor must satisfy all
three conditions to intervene as a matter of right. Id.

       The parties agree that the only issue in question is whether the existing parties
can adequately protect the interests of the proposed intervenor. Typically, a proposed
intervenor would confront only a "minimal burden of showing that its interests are not
adequately represented by the parties." Mausolf v. Babbitt, 85 F.3d 1295, 1303 (8th
Cir. 1996) (internal quotation omitted). "[T]his court has recognized[, however,] that
the applicant for intervention bears a heavier burden on this factor when a party
already in the suit has an obligation to represent the interests of the party seeking to
intervene." United States v. Union Elec. Co., 64 F.3d 1152, 1168 (8th Cir. 1995).
Because the Tribe requested, pursuant to 25 U.S.C. § 465, that the government place
certain lands in trust for its benefit, we conclude that this case is an example of such
a situation. See Mausolf, 85 F.3d at 1303 (stating that "when one of the parties is an

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arm or agency of the government, and the case concerns a matter of sovereign interest
. . . the government is presumed to represent the interests of all its citizens" (internal
quotations omitted)); Hydaburg Co-op Ass'n v. United States, 667 F.2d 64, 68 (Ct.
Cl. 1981) (concluding that Act created limited duty to protect certain Indian lands
from continued alienation), cert. denied, 459 U.S. 905 (1982). The Tribe can rebut
the presumption that the government is adequately representing its interests by
showing that its interests actually differ from or conflict with the government's
interests. Union Elec., 64 F.3d at 1169 (stating that the applicant can rebut the
presumption by showing that its interests are not subsumed within the parties'
interests). The district court concluded that the Tribe did not successfully rebut the
presumption that the government would protect its interests, and it denied the Tribe's
motion to intervene of right on the ground that the Tribe's interest in this litigation
was subsumed within the government's obligation to pursue the interests of its
citizens. (App. at 4.)

        On appeal, the Tribe argues that the United States cannot adequately protect
the Tribe's interest in this litigation because the United States has conflicting legal
duties. On the one hand, the Tribe argues, the United States has established a
fiduciary relationship with the Tribe which requires adherence to a duty of complete
and undivided loyalty to the Tribe. On the other hand, the Tribe argues, because the
United States is acting as parens patriae, the government must consider the interest
of all of its citizens, including the interest of nontribal members, thereby violating its
fiduciary duty of undivided loyalty to the Tribe. We need not address the issue of
whether the government is acting as parens patriae because even assuming that it
were, and that the United States has established a fiduciary relationship with the
Tribe, and that the Tribe has correctly stated the scope of the attendant duty, the Tribe
has merely identified a potential legal conflict of interest but not an actual or even
probable conflict of interest. A merely theoretical risk of conflicting legal duties does
not render the government unable to adequately protect the Tribe's interests in this
litigation. Cf. Sac and Fox Nation of Mo. v. Norton, 240 F.3d 1250, 1259 (10th Cir.

                                            4
2001) ("'The key is whether the possibility of being subject to multiple obligations
is real; an unsubstantiated or speculative risk will not satisfy the Rule 19(a) criteria.'")
(quoting 7 Charles Alan Wright, Arthur Miller & Mary Kay Kane, Federal Practice
and Procedure § 1604, at 62 (2d ed. 1986)), cert. denied, 122 S. Ct. 807 (2002);
Shermoen v. United States, 982 F.2d 1312, 1318 (9th Cir. 1992) (concluding that
inquiry under Rule 19 is parallel to inquiry under Rule 24(a)), cert. denied, 509 U.S.
903 (1993). Accordingly, this potential conflict of interest cannot justify
intervention.

         Aside from the purely conjectural conflicts that potentially might arise from
conflicting legal duties, the Tribe has not identified any specific Tribal interest
implicated in this litigation that the United States cannot or will not adequately
protect. Because we presume that the United States is acting on behalf of the Tribe,
it is incumbent upon the Tribe to set forth specific interests that only it can protect by
intervening. Union Elec., 64 F.3d at 1169. The Tribe has failed to specifically
identify such an unprotected interest, and the procedural posture of this case suggests
that there is none. The Tribe requested that the Government place the 91 acres of
land in trust for the Tribe. The government placed the land in trust and has doggedly
defended that agency determination against South Dakota's attack through several
rounds of litigation, including one bout at the Supreme Court. Accordingly, we
conclude that the United States' interests in this litigation subsume the Tribe's
interests and that the United States can adequately protect any interest that the Tribe
has in this litigation. See Connecticut ex rel. Blumenthal v. Babbitt, 899 F. Supp. 80,
83 (D. Conn. 1995) (concluding that absent evidence of an actual conflict in the
record, the Secretary of the Interior could adequately represent the interest of a tribe
with respect to certain lands held in trust); see also S.W. Ctr. for Biological Diversity
v. Babbitt, 150 F.3d 1152, 1154 (9th Cir. 1998) (concluding, in the Rule 19 context,
that the government can adequately protect the interests of the tribe unless there is a
specific conflict of interest between the tribe and the government). Therefore, the
district court did not err in denying the Tribe's motion for intervention of right.

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       We next turn to the question of whether the district court improperly denied the
Tribe's motion for permissive intervention. Rule 24(b) provides that:

      [u]pon timely application anyone may be permitted to intervene in an
      action . . . when an applicant's claim or defense and the main action have
      a question of law or fact in common. . . . In exercising its discretion the
      court shall consider whether the intervention will unduly delay or
      prejudice the adjudication of the rights of the original parties.

Fed. R. Civ. P. 24(b). The district court concluded that the Tribe and the United
States raised common questions of law, but it denied the Rule 24(b) motion,
concluding that the "interests of the proposed intervenors are adequately protected."
(App. at 4.) The decision to grant or deny a motion for permissive intervention is
wholly discretionary. See Bush v. Viterna, 740 F.2d 350, 359 (5th Cir. 1984)
("Permissive intervention is wholly discretionary with the district court even though
there is a common question of law or fact, or the requirements of Rule 24(b) are
otherwise satisfied."); 7C Wright, Miller & Kane, Federal Practice and Procedure §
1913, at 376-77 ("If there is no right to intervene under Rule 24(a), it is wholly
discretionary with the court whether to allow intervention under Rule 24(b) and even
though there is a common question of law or fact, or the requirements of Rule 24(b)
are otherwise satisfied, the court may refuse to allow intervention.") (footnote
omitted). Accordingly, we grant great deference to the district court's decision to
deny a Rule 24(b) motion, reviewing it only for a clear abuse of discretion. Curry,
167 F.3d at 422; Edmondson v. Nebraska, 383 F.2d 123, 127 (8th Cir. 1967).

       The principal consideration in ruling on a Rule 24(b) motion is whether the
proposed intervention would unduly delay or prejudice the adjudication of the parties'
rights. United States v. Pitney Bowes, Inc., 25 F.3d 66, 73 (2d Cir. 1994); 7C Wright,
Miller & Kane, Federal Practice and Procedure § 1913, at 379. In this case, the
district court did not determine whether the proposed intervention would cause undue
delay or prejudice. Instead, the district court examined whether the United States


                                          6
could adequately protect the Tribe's interests. Although the adequacy of protection
is only a minor variable in the Rule 24(b) decision calculus, it is not an illegitimate
consideration. See United States Postal Serv. v. Brennan, 579 F.2d 188, 191 (2d Cir.
1978) (noting that adequacy of representation is a relevant factor in permissive
intervention analysis); Tachna v. Insuranshares Corp., 25 F. Supp. 541, 542 (D. Mass.
1938) (stating that Rule 24 does not limit the inquiry to only whether intervention
will delay or prejudice the adjudication of the parties' rights). Thus, although the
Tribe has cited authority that probably would have persuaded us to grant the motion
if we were the district court ruling on the motion in the first instance, see Arizona v.
California, 460 U.S. 605, 614-15 (1983), we cannot say that the district court clearly
abused its discretion in this case by not granting the motion.

       Reversal of a decision denying permissive intervention is extremely rare,
bordering on nonexistent. See Pitney Bowes, 25 F.3d at 73 (noting that reversal of
denial of permissive intervention is so rare that it is unique); Bush, 740 F.2d at 359
(same); see also 7C Wright, Miller & Kane, Federal Practice and Procedure § 1923,
at 515-16 (concluding that because the district court is afforded great deference in
this context and because of the paucity of cases reversing a denial of permissive
intervention, "it would seem sounder to dismiss out of hand appeals from a denial of
permissive intervention"). The district court articulated a legitimate reason for
denying the Rule 24(b) motion. Thus, the district court's decision to deny the Tribe's
motion for permissive intervention is not one of the unique or rare cases where we
can conclude that the district court clearly abused its discretion.

         Accordingly, for the foregoing reasons, we affirm the judgment of the district
court.




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A true copy.

      Attest:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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