# Oklahoma State of v. United States Department of the Interior

> District Court, W.D. Oklahoma · November 1, 2021

URL: https://www.frixlaw.com/law-library/cases/10389328

## Case

- **Court:** District Court, W.D. Oklahoma
- **Decided:** November 1, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10389328

## How later opinions describe it (automated extraction)

- affirming denial of permissive intervention because defendant would adequately represent applicant’s interests

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA

STATE OF OKLAHOMA, et al., )
)
Plaintiffs, )
)
v. ) Case No. CIV-21-719-F
)
UNITED STATES DEPARTMENT )
OF THE INTERIOR, et al., )
)
Defendants. )
ORDER
After the Supreme Court determined in McGirt v. Oklahoma, __ U.S. __, 140
S.Ct. 2452 (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.
I. BACKGROUND
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 (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 (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.

1 See McGirt, 140 S. Ct. at 2499-2500 (Roberts, C.J. dissenting) (“…far from disputing
Oklahoma’s jurisdiction, the Five Tribes themselves have repeatedly and emphatically agreed
that no reservation exists.”).
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.
II. STANDARD OF DECISION
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).
III. DISCUSSION
A. Intervention as of Right
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).
1. Impairment of Interest
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 potential for impairment or an impairment that is contingent on
the outcome of the litigation is sufficient to meet the “minimal burden” presented by
this requirement. Kane Cty., 928 F.3d at 891.
Here, plaintiffs seek a declaratory judgment that McGirt’s holding does not
apply outside the criminal law context and that Oklahoma has jurisdiction over
surface coal mining activities on the Creek Nation’s reservation lands under
SMCRA. This case therefore implicates important questions regarding who may
exercise regulatory authority within the boundaries of the Nation’s reservation. As a
sovereign entity, the Nation has a direct interest in “the governance of that land and
the events occurring upon it.” N. Arapaho Tribe v. Harnsberger, 697 F.3d 1272,
1279 (10th Cir. 2012). As a practical matter, if plaintiffs succeed on their claims,
the Nation’s ability to exercise general regulatory authority over the land at issue
could be impaired. At the very least, the Nation’s ability to implement its own
SMCRA program in the future could be compromised. The Nation’s interest in
protecting its jurisdictional authority, and the potential for impairment of that interest
if plaintiffs succeed on their claims, is sufficient to satisfy the minimal burden
presented by Rule 24’s interest requirement.2
In attempting to avoid this conclusion, plaintiffs argue that the Nation’s
concerns are misplaced because plaintiffs do not seek in this case to overturn McGirt
or directly attacking the Nation’s reservation status. But this argument construes the
Nation’s interest too narrowly. To satisfy the interest requirement, the intervenor
need only show an interest relating to the transaction that is the subject of the action.
WildEarth Guardians, 604 F.3d at 1198. The subject of this action is regulatory
jurisdiction under SMCRA on the Nation’s reservation land, and the Nation
undoubtedly has an interest in who can exercise that jurisdiction. Thus, the Nation’s
sovereign interests are related to this action even if the particular legal issues raised

2 Plaintiffs’ claims under the APA similarly risk impairing the Nation’s interests because
a decision in plaintiffs favor “would require the federal agency to engage in an additional round
of administrative planning and decision-making that itself might harm the movants’ interests,
even if they could participate in the subsequent decision-making.” W. Energy All. v. Zinke, 877
F.3d 1157, 1167 (10th Cir. 2017).
by plaintiffs’ Complaint do not require the court to make a reservation status
determination.
2. Adequate Representation
Although possessing an interest that may be impaired by the litigation, a
nonparty will not be entitled to intervene under Rule 24 unless it can also show that
its interest is not adequately represented by the existing parties. Fed.R.Civ.P.
24(a)(2). “The burden continues to be on the petitioner or movant in intervention to
show that the representation by parties may be inadequate.” Nat. Res. Def. Council,
Inc. v. U.S. Nuclear Regul. Comm'n, 578 F.2d 1341, 1345 (10th Cir. 1978). “An
applicant may fulfill this burden by showing collusion between the representative
and an opposing party, that the representative has an interest adverse to the applicant,
or that the representative failed in fulfilling his duty to represent the applicant’s
interest.” Sanguine, Ltd. v. U.S. Dep't of Interior, 736 F.2d 1416, 1419 (10th Cir.
1984). However, “the possibility of divergence of interest need not be great” and “it
is enough to show that the representation ‘may be’ inadequate.” Nat. Res. Def.
Council, Inc, 578 F.2d at 1345.
As the Nation points out, this showing is “easily made” when the
representative party is the government, because the government’s obligation to
represent the broader public interest is not typically “coextensive with the
intervenor’s particular interest.” Utah Ass'n of Ctys., 255 F.3d at 1254. For example,
in Kane Cty, 928 F.3d at 894-895, an environmental group was permitted to
intervene as of right in a suit regarding the scope of a right of way because the federal
defendants represented broad interests that were not necessarily consistent with the
environmental groups’ desire to see the scope defined as narrowly as possible.
Similarly, in WildEarth Guardians, 573 F.3d at 996-997, a coal company was
permitted to intervene in a suit alleging that the DOI violated the APA and the
National Environmental Policy Act because, even though the applicants and the
government shared the same general objective in defending the agency’s decisions,
the government had multiple objectives and “could well decide to embrace some of
the environmental goals” of the opposing party.
But as the Tenth Circuit has explained, “[t]hese cases…are inapplicable where
the objective of the applicant for intervention is identical to that of one of the
parties.” Tri-State Generation & Transmission Ass'n, Inc. v. New Mexico Pub.
Regul. Comm'n, 787 F.3d 1068, 1072 (10th Cir. 2015) (internal quotation omitted).
In that scenario, adequate representation is presumed, even where the representative
party is a government entity. Id.; see also San Juan Cty., 503 F.3d at 1204. The
presumption of adequate representation applies “even though a party seeking
intervention may have different ‘ultimate motivation[s]’ from the governmental
agency,” so long as “its objectives are the same.” Tri-State, 787 F.3d at 1072.
Applying these principles, the Tenth Circuit has found the government to be
an adequate representative for a private party in several instances. In San Juan Cty.,
503 F.3d at 1167, the Tenth Circuit considered whether the United States, the DOI,
and the National Park Service could adequately represent the interests of several
conservation groups in a federal quiet title action. Recognizing that the presumption
of adequate representation “should apply when the government is a party pursuing a
single objective,” the Tenth Circuit held that the federal defendants could adequately
represent the applicant’s interest because they shared the same objective of
defending federal title to the property. Id. at 1204. In reaching this conclusion, the
court was not persuaded that past disputes between the applicants and the federal
defendants undermined their ability to provide adequate representation in the current
litigation. Id. at 1206. Further, the court refused to infer inadequate representation
from the federal defendants’ opposition to intervention, instead finding “that their
assertion that they will adequately represent [the applicant’s] interests in this case is
entitled to respect.” Id.
Tri-State, 787 F.3d at 1073, reached a similar result. Tri-State, a regional
electric cooperative, alleged that the New Mexico Public Regulation Commission’s
(“NMPRC”) exercise of jurisdiction and suspension of Tri-State’s wholesale electric
rate increases violated the Commerce Clause. Id. at 1069. KCEC, an electric
cooperative that purchased wholesale electricity from Tri-State and objected to the
rate increases, moved to intervene. Id. at 1071. The Tenth Circuit denied intervention
because KCEC and the NMPRC shared the same objective – preserving NMPRC’s
jurisdiction over Tri-State’s wholesale electricity rates. Id. at 1073. In distinguishing
this situation from cases where representation by a government entity was found to
be inadequate, the Tenth Circuit explained that:
This simply is not a case where the governmental agency must account
for a ‘broad spectrum’ of interests that may or may not be coextensive
with the intervenor’s particular interest….Tri–State’s suit challenges
the constitutionality of a New Mexico statute granting the NMPRC
power to, under certain circumstances, ‘suspend’ a G & T cooperative's
rates, ‘conduct a hearing’ on the reasonableness of the rates, and
‘establish reasonable rates.’…Thus, the suit presents a ‘binary’ issue—
whether the New Mexico statute granting the NMPRC this authority
accords with the Commerce Clause of the United States
Constitution…The challenge does not require the NMPRC to strike
some balance between the interest of electricity wholesalers, retailers,
and the general public. Nor does it require the NMPRC to determine
the reasonableness of Tri–State's current rates or establish reasonable
rates. It simply requires the NMPRC to argue its authority under § 62–
6–4(D) does not violate the Commerce Clause.
Id. at 1073 (internal citations omitted).
As in Tri-State, this case concerns the government’s exercise of its regulatory
authority and presents a binary issue – whether SMCRA grants OSMRE regulatory
jurisdiction over the lands recognized by McGirt to be within the boundaries of the
Creek reservation. Resolving this question does not require OSMRE to “strike some
balance” between multiple stakeholders or consider conflicting public interests; it
only requires OSMRE to defend its own federal regulatory jurisdiction. And in
defending that jurisdiction, OSMRE will necessarily (and in fact already has) argue
that the Nation’s reservation land qualifies as “Indian lands” under SMCRA, a
position that is in complete harmony with the Nation’s interest in protecting its own
jurisdiction and sovereignty.
The Nation indicates that its “overriding goal” is to “defend the Nation’s
jurisdiction within the reservation” and that it seeks to intervene to “protect its newly
confirmed jurisdictional rights.” Reply Br. 2, 6. This objective is virtually identical
to OSMRE’s objective because federal jurisdiction relies on a finding that the
Nation’s reservation qualifies as “Indian lands” under SMCRA and that the Nation
could exercise jurisdiction if it chose to develop a tribal regulatory program. Thus,
although the Nation’s sovereign interests may sweep more broadly than the federal
government’s interests as a general matter, in the context of this case, defendants
and the Nation share a common objective in seeing OSMRE’s jurisdictional
authority confirmed.
This conclusion is consistent with Tenth Circuit precedent holding that
government defendants can adequately represent the interests of an Indian tribe, even
when issues related to sovereignty are implicated. For example, in U.S. v. Kansas,
249 F.3d 1213, 1218 (10th Cir. 2001), the Miami Tribe of Oklahoma sought dismissal
of an action for failure to join it as a necessary party under Rule 19. The underlying
dispute concerned whether a tract of land acquired by the Miami Tribe qualified as
“Indian lands” under the Indian Gaming Regulatory Act. After the National Indian
Gaming Commission (“NIGC”) concluded that the land met this definition, the State
of Kansas sued the NIGC, several other federal entities, and officials from the Miami
Tribe for violations of the APA. Id. at 1220. Thus, much like the instant case, Kansas
involved “a dispute between federal, tribal, and state officials as to which sovereign
has authority over the tract.” Id. at 1225.
Despite the Miami Tribe’s clear interest in the litigation, the Tenth Circuit
held that it was not a required party because the claims focused on the propriety of
an agency decision and the defendants’ interests were “substantially similar, if not
identical to the Tribe’s interests in upholding the NIGC’s decision.” Id. at 1227.
Similarly, here, OSMRE is an adequate representative for the Nation because they
both share an interest in seeing OSMRE’s decision to strip Oklahoma of its
regulatory jurisdiction upheld. See also Sac & Fox Nation of Missouri v. Norton,
240 F.3d 1250, 1253 (10th Cir. 2001) (concluding that Wyandotte Tribe was not a
required party to action challenging Secretary of the Interior’s decision to take tract
of land into trust on behalf of tribe and approve gaming activities because “[a]s a
practical matter, the Secretary’s interest in defending his determinations is ‘virtually
identical’ to the interests of the Wyandotte Tribe.”).3
In seeking to demonstrate that OSMRE and the DOI cannot adequately
represent its interest, the Nation points out that it has a history of adversarial relations
with the federal government. But the fact that there may have been prior disputes
between the Nation and the federal government does not indicate that representation
will be inadequate in this matter, particularly given that OSMRE has “displayed no
reluctance” to fully defend its position. San Juan Cty., 503 F.3d at 1206. Similarly,
OSMRE’s objection to intervention does not give rise to an inference of inadequate
representation. Id. Defendants may oppose intervention for reasons that do not
compromise their ability to represent the Nation’s interests and, in any event,

3 The case relied on by the Nation, N. Arapaho Tribe v. Harnsberger, 697 F.3d 1272, 1275
(10th Cir. 2012), is distinguishable. There, the Tenth Circuit dismissed the case for failure to join
the Eastern Shoshone Tribe, a necessary party that could not be feasibly joined due to sovereign
immunity. But N. Arapaho Tribe concerned the designation of land as “Indian Country” in the first
instance. Id. at 1277. Here, in contrast, the Supreme Court has already resolved that question and
all that remains is to determine whether OSMRE properly interpreted and applied SCMRA
following McGirt.
adequate representation can exist “even though a party seeking intervention may
have different ‘ultimate motivation[s]’ from the governmental agency.” Tri-State
Generation, 787 F.3d at 1072–73 (alterations in original). Moreover, “representation
is not inadequate simply because the applicant and the representative disagree
regarding the facts or law of the case.” Sanguine, 736 F.2d at 1419. And, despite the
Nation’s concerns about the potential for settlement, representation is not
“inadequate merely because the representative enters into a [settlement], because
any case, even the most vigorously defended, may culminate in a [settlement].” Kane
Cty., 928 F.3d at 892 (internal quotation omitted) (alterations in original).
Rule 24, although posing only a “minimal burden” to intervention as of right,
nevertheless requires courts to “apply ‘practical judgment’ when ‘determining
whether the strength of the interest and the potential risk of injury to that interest
justify intervention.’” Kane Cty., 928 F.3d at 891 (quoting San Juan Cty., 503 F.3d
at 1199). Although the Nation plainly has an interest in the outcome of this litigation,
the potential risk of injury to that interest is significantly reduced by the presence of
OSMRE and the DOI, who share a common objective with the Nation with respect
to the issues raised in this case. Accordingly, “based on the specific circumstances
of the case,” and considering “the practical effect of the litigation on the applicant
for intervention,” the court finds that the Nation is not entitled to intervene as of
right. WildEarth Guardians, 573 F.3d at 995 (internal quotation omitted).
B. Permissive Intervention
If not permitted to intervene as of right, the Nation alternatively seeks
permissive intervention for the limited purpose of moving for dismissal. Permissive
intervention is “a matter within the district court’s discretion.” City of Stilwell, Okl.
v. Ozarks Rural Elec. Co-op. Corp., 79 F.3d 1038, 1043 (10th Cir. 1996) (internal
quotation omitted). Here, even assuming the Nation “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), permissive intervention is not warranted because the federal defendants
will adequately represent the Nation’s interest in this case. See Tri-State Generation,
787 F.3d at 1075 (affirming denial of permissive intervention because defendant
would adequately represent applicant’s interests); Ozarks, 79 F.3d at 1043 (same).
Accordingly, the court finds that the Nation is not entitled to intervene permissively.
IV. CONCLUSION
For the reasons explained above, the Motion of the Muscogee (Creek) Nation
for Limited Intervention (doc. no. 22) is DENIED.
IT IS SO ORDERED this 1* day of November, 2021.

STEPHEN P. paudt
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10389328. Public record. Not legal advice.