                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 18a0020n.06

                                             No. 17-1362                             FILED
                                                                                Jan 09, 2018
                          UNITED STATES COURT OF APPEALS                    DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT


BAY MILLS INDIAN COMMUNITY,                                )
                                                           )
       Plaintiff-Appellee,                                 )
                                                           )
               v.                                          )
                                                           )
                                                                ON APPEAL FROM THE
RICK SNYDER, Governor,                                     )
                                                                UNITED STATES DISTRICT
                                                           )
                                                                COURT FOR THE WESTERN
       Defendant-Appellee,                                 )
                                                                DISTRICT OF MICHIGAN
                                                           )
SAGINAW CHIPPEWA INDIAN TRIBE OF                           )
MICHIGAN,                                                  )
                                                           )
       Proposed Intervenor-Appellant.                      )
                                                           )
                                                           )


BEFORE: CLAY, GIBBONS, and BUSH, Circuit Judges.

       JULIA SMITH GIBBONS, Circuit Judge. The Saginaw Chippewa Indian Tribe of

Michigan (“Saginaw”) appeals the district court’s denial of its motion for permissive intervention

under Federal Rule of Civil Procedure 24(b). Saginaw alleges that the district court erred in

finding that it did not share a common question of law or fact with the main action. Saginaw

further claims that the district court abused its discretion in denying permissive intervention

because the district court incorrectly imposed requirements necessary for mandatory intervention

onto its permissive intervention analysis.

       We hold that the district court did not err in denying Saginaw’s motion for permissive

intervention. Even if there was a common question of law or fact, Saginaw’s motion for

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intervention was not timely and the district court did not abuse its discretion. We therefore

affirm.

                                                I.

          Saginaw is seeking to intervene in a dispute between the Bay Mills Indian Community

(“Bay Mills”) and the state of Michigan (represented by its governor, Rick Snyder). The dispute

arose in 2010 when Bay Mills began operating a casino in Vanderbilt, Michigan. Michigan v.

Bay Mills Indian Cmty., 134 S. Ct. 2024, 2029 (2014). Michigan sued Bay Mills one month after

the casino opened, alleging that the casino violated Bay Mills’s compact with the State and the

Indian Gaming Regulatory Act (“IGRA”), 25 U.S.C. § 2701 et seq. Id. Under both the state

compact and IGRA, Bay Mills was only permitted to open casinos on “Indian lands.” Id. Bay

Mills defended that the Vanderbilt land was “Indian land” because it was purchased with accrued

interest from a federal appropriation under the Michigan Indian Land Claims Settlement Act

(“MILCSA”), which states that any land acquired with the appropriated funds “shall be held as

Indian lands are held.” 111 Stat. 2652 § 107(a)(3); Bay Mills Indian Cmty., 134 S. Ct. at 2029.

          The district court issued a preliminary injunction against Bay Mills, but this Circuit

reversed, holding that tribal sovereign immunity barred the state from suing Bay Mills. Bay

Mills Indian Cmty., 134 S. Ct. at 2029–30. Instead, Michigan could only proceed against

individual defendants. Id. The Supreme Court granted certiorari and affirmed this Circuit’s

finding of sovereign immunity. Id. at 2039. In accordance with that decision, the case was

remanded to the district court and Michigan amended its complaint to drop the claims against

Bay Mills and to plead claims against the current members of the Bay Mills Executive Council

and Bay Mills Gaming Commission. The case is now known informally as Glezen, after the first

defendant named on the pleadings after remand.



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       Concurrently to Glezen, in 2011, Bay Mills filed another lawsuit—the instant case—

seeking a declaratory judgment that the Vanderbilt land was “Indian land” and that the casino

was not in violation of the state compact or IGRA. This declaratory judgment suit was stayed

pending the Glezen decision. In 2015, after the remand, Michigan and Bay Mills entered into

stipulations to coordinate both Glezen and this case. In part, the stipulations required Michigan

to file a dispositive motion raising the sole issue of whether lands purchased with funds from the

MILCSA were “Indian lands,” before proceeding on any other dispositive motions or discovery.

       A day before Michigan was due to file its dispositive motion on the MILCSA issue,

Saginaw moved for both mandatory and permissive intervention as a defendant. The district

court denied the motion. It found that Saginaw did not have a sufficient legal interest in the suit

to warrant mandatory intervention, nor did Saginaw have the common question of law or fact

necessary for permissive intervention. Saginaw now appeals only the denial of permissive

intervention under Fed. R. Civ. Pro. 24(b). Both Michigan and Bay Mills oppose Saginaw’s

proposed intervention.

                                                 II.

       We review the district court’s denial of a motion for permissive intervention for abuse of

discretion. Coal. to Defend Affirmative Action v. Granholm, 501 F.3d 775, 784 (6th Cir. 2007).

Under this deferential standard, the court should “revers[e] only if ‘left with the definite and firm

conviction’ that the district court committed a clear error of judgment.” Serv. Emps. Int’l Union

Local 1 v. Husted, 515 F. App’x 539, 541 (6th Cir. 2013) (quoting Granholm, 501 F.3d at 784).

       A district court has discretion to grant permissive intervention on a timely motion to

anyone who “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, the district court must also



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“consider whether the intervention will unduly delay or prejudice the adjudication of the original

parties’ rights.” Id. 24(b)(3).

        Here, Saginaw argues that it does share a common question with the dispute between Bay

Mills and Michigan. It mainly relies on the fact that its responses to Bay Mills’s amended

complaint substantially mirror the positions advanced by Michigan. However, Saginaw cites no

precedent to support the idea that pleading similar responses necessarily indicates a common

question of law or fact. Indeed, if that were true, any party wishing to intervene to support one

side of a lawsuit could simply reiterate the pleadings of that side and thus meet the “common

question” requirement. Permissive intervention cannot be interpreted so broadly.1

        Saginaw further argues that this case involves an interpretation of IGRA, which governs

all Indian tribes, including Saginaw; therefore, this IGRA issue fulfills the common question

requirement. However, the district court correctly held that the real issue in this case does not

involve interpreting IGRA, but rather the MILCSA. IGRA provides a framework for regulating

gambling activity on “Indian lands.” Bay Mills Indian Cmty., 134 S. Ct. at 2028. Pursuant to

IGRA, Bay Mills and Michigan entered into a compact in 1993, which allowed Bay Mills to

operate casinos on “Indian lands.” Id. at 2029.

        Separately, under the MILCSA, Congress appropriated certain funds to go into a “land

trust” for Bay Mills, and earnings from that trust were to be used to improve or purchase

property. Id. The MILCSA also stated that any land so acquired “shall be held as Indian lands

are held.” 111 Stat. 2652 § 107(a)(3). Based on this MILCSA language, Bay Mills and

Michigan contest whether the Vanderbilt land, which was purchased with MILCSA funds,

constitutes “Indian land.”        Thus, as the district court correctly noted, the court is actually


1
 An amicus brief would have been more appropriate in this situation and, in fact, Governor Snyder suggested that
Saginaw file an amicus brief in this case, but it did not do so.

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No. 17-1362, Bay Mills Indian Cmty. v. Snyder


interpreting MILCSA, not IGRA. Since Saginaw is not a party to the MILCSA, nor to the Bay

Mills-Michigan compact, it does not share any common questions with this case.

       Saginaw points out that since Bay Mills is arguing that the Vanderbilt land is “Indian

land,” the district court’s decision will inevitably impact what “Indian land” means under IGRA.

However, the case is mainly focused on the language in MILCSA, not IGRA, and any effect on

the interpretation of IGRA would be a mere side effect. Allowing this to fulfill the “common

question” requirement would mean that any Indian tribe would be able to intervene whenever

IGRA is implicated in any way—or, to analogize, it would allow any employer to intervene in

any Title VII suit. Such an interpretation would be much too broad. Accordingly, the district

court was correct to find that Saginaw does not meet the “common question” requirement for

permissive intervention because it is not a party to MILCSA.

                                                    III.

       Additionally, Saginaw’s motion for intervention was not timely.          When considering

whether a motion to intervene is timely, the court should consider all the circumstances,

including:

       (1) the point to which the suit has progressed; (2) the purpose for which
       intervention is sought; (3) the length of time preceding the application during
       which the proposed intervenors knew or should have known of their interest in the
       case; (4) the prejudice to the original parties due to the proposed intervenors’
       failure to promptly intervene after they knew or reasonably should have known of
       their interest in the case; and (5) the existence of unusual circumstances militating
       against or in favor of intervention.

Jansen v. City of Cincinnati, 904 F.2d 336, 340 (6th Cir. 1990). Here, these factors point to a

finding of untimeliness. First, Saginaw filed its motion to intervene more than five years after

this suit was initiated in 2011. Second, Saginaw admits that it has known about this litigation

since the case began. And third, this dispute has been to the Supreme Court and back, and there

has been much discovery and negotiation between the original parties.
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       While Saginaw is correct is noting that there is no absolute amount of time that makes a

motion untimely, Stupak-Thrall v. Glickman, 226 F.3d 467, 475 (6th Cir. 2000), and that a court

can still allow intervention even when a case is well advanced, In re Telectronics Pacing Sys.,

Inc., 221 F.3d 870, 881–82 (6th Cir. 2000), the factors here indicate that Saginaw should have

filed a motion to intervene earlier. Accordingly, we hold that Saginaw’s motion to intervene was

untimely.

                                                     IV.

       Lastly, even if Saginaw’s motion was timely and did share a common question with the

main litigation, the district court still has discretion to decide whether or not to grant permissive

intervention. Here, the court was reasonable to conclude that the circumstances of this case did

not warrant an intervention by Saginaw. The district court pointed out that Michigan has filed a

summary judgment motion representing Saginaw’s view that the Vanderbilt land is not “Indian

land” simply because it was purchased with MILCSA funds. The fact that Saginaw’s position is

being represented counsels against granting permissive intervention. See Menominee Indian

Tribe of Wisconsin v. Thompson, 164 F.R.D. 672, 678 (W.D. Wis. 1996.) Additionally, the long

history of the dispute and the extensive litigation that has already occurred between Bay Mills

and Michigan also suggest that intervention would not be appropriate.

       Saginaw argues that the district court imposed the requirements of mandatory

intervention in its analysis of permissive intervention. However, the district court did not do so;

instead it merely considered some of the mandatory intervention factors when evaluating

whether permissive intervention was appropriate in light of all the circumstances. District courts

can consider such factors when evaluating permissive intervention motions. See Granholm,

501 F.3d at 784 (affirming district court’s denial of motion for permissive intervention and



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No. 17-1362, Bay Mills Indian Cmty. v. Snyder


noting that the district court had properly considered the lack of a substantial legal interest and

adequate representation by the existing parties). Thus, the district court was well within its

discretion to deny Saginaw’s motion to intervene.

                                                V.

       For the forgoing reasons, we affirm the district court’s denial of permissive intervention.




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