Opposition Brief — Makah Indian Tribe v. United States

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No. 90-1595 JUN &

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Uiice cr THE CLERK

In the Supreme Court of the United States

OCTOBER TERM, 1990

MAKAH INDIAN TRIBE, PETITIONER

Vv.

UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

KENNETH W. STARR

Solicitor General

RICHARD B. STEWART

Assistant Attorney General

ROBERT L. KLARQUIST

Dirk D. SNEL

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTION PRESENTED

Petitioner Makah Indian Tribe sought to intervene

in this complex fishing-rights litigation, in which the

district court entered its judgment in 1969, after

a proposed agreement to implement certain portions

of the judgment had been negotiated and presented

to the district court. The question presented is:

Whether the district court abused its discretion by

denying petitioner’s motion to intervene on the ground

that it was untimely.

(1)

TABLE OF CONTENTS

Page

RET EE RE po ER 1

Jurisdiction .......... a sashes 1

as ascattnibiyemneinsenansieetiats 2

Argument ............. Bacise<dcnee SO EI ee ORE PORTE ODE AAT 11

Conclusion .......... eee erat enidoceelaeaeaeenaaes 22

TABLE OF AUTHORITIES

Cases:

Caterino V. Barry, 922 F.2d 37 (1st Cir. 1990) _.... 17

City of Bloomington v. Westinghouse Elec. Corp.,

824 F.2d 531 (7th Cir. 1987) ..... ee AICO Ce ae 18

Culbreath v. Dukakis, 630 F.2d 15 (1st Cir.

1980) . he TF RAT OSD Ls RR oe TO 18

Donovan Vv. United Steelworkers, 721 F.2d 126 (3d

Cir. 1983), cert. denied, 467 U.S. 1252 (1984)... 17

Farmland Dairies v. New York State Dep’t of

Agric., 847 F.2d 1038 (2d Cir. 1988) ................ 18

Fiandaca Vv. Cunningham, 827 F.2d 825 (1st Cir.

GETS gy 2 SER SE . 17-18

Gould v. Alleco, 883 F.2d 281 (4th Cir. 1989),

cert. denied, 110 S. Ct. 870 (1990) _....... (Cs Rap Se Oe 17

Idaho ex rel. Evans v. Oregon, 462 U.S. 1017

PRETEEN EEC a CO oR Cae 4

Jenkins by Agyet V. Missouri, 855 F.2d 1295 (8th

Cir. 1988), cert. denied, 490 U.S. 1034 (1989)... 17

Jones V. Caddo Parish School Board, 735 F.2d 923

EE EE ea ate OO eC ee 17

Lomayaktewa v. Hathaway, 520 F.2d 1324 (9th

Cir. 1975), cert. denied, 425 U.S. 903 (1976)... 22

Makah Indian Tribe v. Verity, 910 F.2d 555 (9th

i ussaiuanened ...8, 7, 20, 21

Martin v. Wilks, 490 U.S. 755 (1989) ..................... 16, 18

Missouri V. Jenkins, 110 S. Ct. 1651 (1990) —........... 17

NAACP Vv. New York, 413 U.S. 345 (1973) .......... 11

(111)

Cases—Continued : Page

Sohappy V. Smith:

302 F. Supp. 899 (D. Or. 1969) .......................... 5

529 F.2d 570 (9th Cir. 1976) ....................-.......... 5

Stallworth v. Monsanto Co., 558 F.2d 257 (5th

I de anaes caeldnanaiane 17

United States v. City of Chicago, 897 F.2d 243

GA ne aa Sa Dike AOS aio 18

United States v. Jefferson County, 720 F.2d 1511

EER ae NSA Rien nt A ERD Soe OO 18

United States v. Kemper Money Mkt. Fund, 704

ee I, I I i acamceniseneesncnnsnbnccnnivees 18

United States v. Oregon:

699 F. Supp. 1456 (D. Ore. 1988) 0... 9

657 F.2d 1009 (9th Cir. 1981) _.............0000000..... 5

718 F.2d 299 (9th Cir. 1983S) .......................00...... 5

745 F.2d 550 (9th Cir. 1984) _............. 5, 12, 18, 19

769 F.2d 1410 (9th Cir. 1985) ...............0000..... 5

United States v. Washington, 384 F. Supp. 312

(W.D. Wash. 1974), aff’d and modified, 520

F.2d 676 (9th Cir. 1975), cert. denied, 423 U.S.

MINIT | cctdih:cscscocenbimnbaninienaneaptactelaedabidecennsentanene 4

United States v. Washington, 626 F. Supp. 1405

(W.D. Wash. 1982), aff’d, 730 F.2d 1314 (9th

Bann MMIII ciik can ctueusthaniesscunhniaeasccanaannenaneehaeesdcccdiesnencs 3

Walker v. Jim Dandy Co., 747 F.2d 1360 (11th

a eae ceah eoembeabaseaseeectabien: 18

Washington Vv. Washington State Commer cial Pas-

senger Fishing Vessel Ass’n, 443 U.S. 658

PICEA TEE RAR ner nd ae ecallas hadi Se ole EERE 4

Washington Crab Producers, Inc. V. Mosabacher,

924 F.2d 1488 (9th Cir. 1991) ........000000000..... 3,4

Wichita & Affiliated Tribes v. Hodel, 788 F.2d 765

RD I Se Sk coe een ee 22

Treaty with the Makah Tribe, Jan. 31, 1855, art.

8 ft Gf jaar

Act of Apr. 8, 1918 (Oregon- Washington River

Fish Compact), ch. 47, 40 Stat. 515 aes 9

Treaty, statutes, regulations and rules: Page

Fishery Conservation and Management Act of

1976 (Magnuson Act), 16 U.S.C. 1801 et seq.:

§ 302(a) (6), 16 U.S.C. 1852 (a) (6) 3

§ 302(i), 16 U.S.C. 1662 (i) ..................0..00... 20

is Ue Cy TIUIID cs cencacncese<asanececvaeessuecsotnasies 3

50 C.F.R.:

EE ee siicsassleuicnae ieee baths SO soa 20

Pt. 661:

SLE SUNY 03 ssctenctitcicincoiscuinenccceeusmeteecamme: 20

Fed. R. Civ. P.:

Ee rane OTE et 5 eee 11

ESA ORE OA nheen

TR a ER LAE LN omc 6

Miscellaneous:

55 Fed. Reg. (1990) :

| RASS ee eRe ait Ys <TD 20

~~ eee 20

Iu the Supreme Court of the United States

OCTOBER TERM, 1990

No. 90-1595

MAKAH INDIAN TRIBE, PETITIONER

Vv.

UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. Al-

A59) is reported at 913 F.2d 576. The opinion of the

district court denying petitioner’s motion to inter-

vene (Pet. App. C1-C40) is reported at 122 F.R.D.

571. The opinion of the district court sustaining the

fishery management plan on the merits is reported

at 699 F. Supp. 1456.

JURISDICTION

The judgment of the court of appeals was entered

on August 27, 1990. The petition for rehearing was

denied on January 11, 1991. Pet. App. D1-D2. The

petition for a writ of certiorari was filed on April 11,

1991. The jurisdiction of this Court is invoked under

28 U.S.C. 1254(1).

(1)

STATEMENT

The district court entered its judgment in this

complex fishing-rights case in 1969, broadly declar-

ing the treaty rights of four Indian tribes to take

fish from usual and accustomed places on the Colum-

bia River and limiting the authority of the State of

Oregon to regulate such fishing. In 1988, petitioner,

an Indian tribe that neither takes fish from locations

along the Columbia River or its tributaries nor claims

any treaty right to do so, moved to intervene. Pet.

App. C2-C3. Its motion was filed only after the

United States, the States of Oregon and Washington,

and the four Indian tribes had submitted to the dis-

trict court for approval a Columbia River fish man-

agement plan to implement the judgment. Pet. App.

C4. The plan had been under negotiation among the

respondents since 1983, and petitioner knew of those

negotiations since at least 1984. Pet. App. C18-C19.

The court of appeals held that the district court did

not abuse its discretion in denying petitioner’s mo-

tion to intervene as untimely (Pet. App. A56-A57),

and the district court further held that intervention

was not warranted in any event because petitioner has

no interest directly affected by the plan or this case.

Pet. App. C35.

1. a. Petitioner occupies a reservation an the

northwest point of the Olympic Peninsula in the

State of Washineton (see Pet. App. El (map)) and

holds a right secured by treaty to take fish in an

area of the Pacific Ocean extending seaward from

the Washington coastline.’ The part of petitioner's

'The right of petitioner’s members to fish in this area is

derived from Article IV of the Treaty with the Makah Tribe

of Jan. 31, 1855, 12 Stat. 940, as construed and applied in

ocean fishery that lies three or more miles sea-

ward of the coast is subject to federal regulations

promulgated by the Secretary of Commerce pursuant

to the Fishery Conservation and Management Act of

1976 (Magnuson Act), 16 U.S.C. 1801 et seg. See

§ 304, 16 U.S.C. 1854; Pet. App. A6-A7, C10-C11.

The Secretary adopts those regulations after receiv-

ing the recommendation of the Pacific Fishery Man-

agement Council! (PFMC), which is established by

Section 302(a)(6) of the: Magnuson Act, 16 U.S.C.

1852(a)(6), to formulate management measures for

ocean fisheries within the 197-mile “exclusive eco-

nomic zone” that lies between 3 and 200 miles sea-

ward of the coast of Washington, Oregon, and Cali-

fornia. The PFMC has 13 voting members, includ-

ing the state fishery management official from each

of the three coastal States plus Idaho, a regional

director of the National Marine Fisheries Service

in the Commerce Department’s National Oceanic

and Atmospheric Administration, one representative

of Indian tribes havine a riecht to take fish from

the ocean, and eicht at-large members appointed by

the Secretary of Commerce from among nominees

submitiecd by the governors of the four States. See

Makah Indian Tribe ve Verity, 910 F.2d 555, 556-

557 (9th Cir. 1990); Washington Crab Producers,

Ine. v. Mos'acher, 924 F.2d 1458, 1441 (9th Cir.

1991).

The area of petitioner’s ocean treaty fishery be-

tween the Washington coast and three miles sea-

ward is subject to tribal and limited state regulation.

United States Vv. Washington, 626 F. Supp. 1405, 1466-1468

(W.D. Wash. 1982), aff'd, 730 F.2d 1314, 1318 (9th Cir.

1984).

That portion of the fishery is also subject to the juris-

diction of the United States District Court for the

Western District of Washington in United States v.

Washington, Civil No. 9213, a complex fishing-rights

case to which petitioner is a party. See United States

v. Washington, 384 F.Supp. 312, 363-365, 400, 406

(W.D. Wash. 1974), aff’d and modified, 520 F.2d

676 (9th Cir. 1975), cert. denied, 423 U.S. 1086

(1976); Washington v. Washington State Commer-

cial Passenger Fishing Vessel Ass’n, 443 U.S. 658,

662 n.2, 663 n.38, 664, 670 n.15 (1979); Pet. App.

A5-A6; Washington Crab Producers, Inc. v. Mos-

bacher, 924 F.2d at 1442.

Petitioner has never claimed a treaty right to take

fish from the Columbia River or its tributaries. How-

ever, fish harvested by petitioner’s members from the

ocean include anadromous species that are born in

inland waters of the Columbia River System, migrate

to the ocean, and, after reaching maturity, migrate

back to their inland places of origin to spawn. See

Idaho ex rel. Evans v. Oregon, 462 U.S. 1017, 1019-

1020 (1983).

b. The instant case, styled United States v. Ore-

gon, was commenced in 1968 in the United States

District Court for the District of Oregon. Pet. App.

C1-C3. In 1969, the district court entered a declara-

tory judgment in favor of the United States and four

Indian tribes,’ holding that the tribes have rights pro-

tected by treaty to take fish from usual and accus-

2 The four tribes, respondents herein, are the Confederated

Tribes of the Warm Springs Reservation of Oregon; the Con-

federated Tribes of the Umatilla Indian Reservation in

Oregon; the Confederated Tribes and Bands of the Yakima

Indian Nation in Washington; and the Nez Perce Tribe in

Idaho.

tomed places on the Columbia River and its tribu-

taries and that the State of Oregon has only limited

regulatory authority as regards those treaty rights.

Sohappy v. Smith, 302 F. Supp. 899 (D. Or. 1969).

That judgment was never appealed. The district

court retained jurisdiction to permit future enforce-

ment or modification of the judgment. Pet. App. C5.’

The States of Washington and Idaho were granted

leave to intervene in this case in 1974 and 1984, re-

spectively. See Sohappy v. Smith, 529 F.2d at 572;

United States v. Oregon, 745 F.2d at 553; Pet.

App. C6, C8. In 1986, respondent Shoshone-Bannock

Tribes of the Fort Hall Reservation in Idaho were

granted leave to intervene because they claimed inter-

ests in upriver fisheries of the Snake River (the ma-

jor tributary of the Columbia River) and the Snake’s

tributaries, although those rights have never been

judicially defined. Pet. App. A37-A38, C9-C10.*

2.a. Since entry of the judgment in 1969, respond-

ents and the district court have undertaken to apply

its requirements to each run of migrating fish en-

tering the Columbia River System. Pet. App. A4-

A5. At the court’s urging, respondents attempted to

design a comprehensive in-river fish management

plan, subject to periodic approval by the court, for

each seasonal run. In 1977, respondents agreed to a

plan for the Columbia River. After that plan ex-

pired, the district court, in September 1983, ordered

5 Post-judgment orders have been the subject of five prior

appellate decisions, reported as Sohappy v. Smith, 529 F.2d

570 (9th Cir. 1976), and United States Vv. Oregon, 657 F.2d

1009 (9th Cir. 1981); 718 F.2d 299 (9th Cir. 1983); 745

F.2d 550 (9th Cir. 1984) ; and 769 F.2d 1410 (9th Cir. 1985).

4 The Confederated Tribes of the Colville Reservation were

permitted to intervene in 1989. See Pet. 9.

respondents to negotiate a new comprehensive man-

agement plan and to submit either an agreed plan or

alternative plans for approval by the court. Since

at least 1984, representatives of petitioner were aware

of the status of the case and the pendency of the

negotiations, but petitioner did not seek to intervene

while they were in progress. See Pet. App. C18-

C19; Pet. C.A. Br. 30; Resp. Tribes and States Jt.

C.A. Br. 18.

b. In early 1988, representatives of the United

States, the four Columbia River tribes, and the

States of Oregen and Washington signed the 1988

Columbia River Fish Management Plan, which for

most purposes has a ten-year duration. The 74-page

Plan establishes a comprehensive organizational and

procedural framework to manage (through the mech-

anism of annual negotiations among federal, state,

and tribal fishery management entities) the propaga-

tion, ailocation, harvest, and conservation of anad-

romous fish runs within the Columbia River System

for the benefit of treaty Indian fisheries and non-

Indian fisheries. In March 1988, the Plan signatories

filed a joint motion in the district court for approval

of the Plan. Pet. App. C11-C12.

3. a. After the Plan was submitted to the district

court, petitioner filed a motion for intervention as of

right under Fed. R. Civ. P. 24(a)(2) and for per-

missive intervention under Fed. R. Civ. P. 24(b),

and it presented a proposed brief opposing the Plan.°

5 Petitioner requested the court either to disapprove the

Plan or to stay its decision pending the outcome of a separate

case brought by petitioner, Makah Indian Tribe v. Baldrige,

Civil No. C87-747-RC (W.D. Wash.), in which petitioner

challenged the regulations adopted by the Secretary of Com-

merce under the Magnuson Act to allocate the ocean harvest

The signatories did not oppose granting petitioner

limited permissive intervention or amicus status for

purposes of objecting to the Plan, but they opposed

granting it full-fledged party status. The court de-

nied intervention, finding, inter alia, no appropriate

way to limit petitioner’s participation. The court did,

however, leave open the possibility of judicial relief

after petitioner exhausted its remedies under the

Magnuson Act. Pet. App. C13-C20, C30, C36, C38-

C40. 7

The court first concluded that petitioner’s motion

was untimely. It reasoned that the submission of the

1988 Plan for approval did not constitute a new stage

of the case, because the parties had engaged in ne-

collations sinee the original plan expired in 1982

and the court had ordered the parties to negotiate a

new plan in 1983. The court found that petitioner was

aware of those negotiations and should have moved

to intervene within a reasonable time after Idaho was

permitted to intervene in 1984, or at least after the

Shoshone-Banncck Tribes were permitted to inter-

vene in 1986. Finally, the court noted that petitioner

of migrating Columbia River Salmon for 1987. The district

court subsequently dismissed that suit because of the absence

of the 23 Indian tribes having fishing rights in Puget Sound,

the Columbia River, and the ocean fishery, which. could not

be joined because of tribal sovereign immunity. On petition-

er’s appeal, the court of appeals affirmed in part and re-

versed in part, holding that the district court had properly

dismissed the case insofar as petitioner challenged the quota

for 1987, but that the action could proceed insofar as peti-

tioner challenged the procedures adopted by the Secretary in

promulgating the regulations. Makah Indian Tribe v. Verity,

910 F.2d 555 (9th Cir. 1990); see pp. 20-22, infra. Verity

was decided by the same panel that rendered the decision that

is the subject of the instant petition, but petitioner elected

not to seek review in Verity.

offered no reason for its delay in moving to intervene,

while during that period of delay, the parties had

made “significant strides” in agreeing to the Plan

before the court. To allow petitioner to intervene,

the court concluded, “would require the parties to

start negotiating all over again,” which “would sig-

nificantly prejudice the existing parties.” Pet. App.

C18-C20.

The district court did not rest its denial of inter-

vention on untimeliness grounds alone. It also found

that petitioner’s interest in the ocean fishery would

not be directly affected or impaired by operation of

the 1988 Plan, noting that petitioner’s “interest * * *

arises from its treaty right in ocean fisheries, not

in a treaty right in the Columbia River fisheries

which are involved in this action.” Pet. App. C34.

The court recognized that petitioner’s ocean treaty

right includes the right to harvest “some fish bound

for the Columbia River,” id. at C33, and that “de-

cisions made concerning what will happen upstream

from the mouth of the Columbia River may in some

way affect’ petitioner’s ocean fishery. Jd. at C24.

However, in the court’s view, “this very aspect of

possible individual interests strikes against inter-

vention.” Jbid. Te court explained that this case

has been limited 1 issues concerning the taking of

fish from the Columbia River System itself, and to

adjudicate petitioner’s interests in taking fish from

the Pacific Ocean would invite intervention by other

tribes from Washington, Canada and Alaska, as well

as commercial and sports fishermen, having an inter-

est in taking fish from the ocean, and would greatly

expand the scope of this case. Jd. at C24-C25.

The court further reasoned that any effects on

Pacific Ocean fisheries resulting from in-river man-

agement decisions made pursuant to the 1988 Plan

are indirect, because “[e]xclusive and direct regula-

tion of [Pacific O]cean fisheries is controlled by the

Magnuson Act,” through the Commerce Department

and the Pacific Fishery Management Council. Pet.

App. C30. The court reasoned that any challenges

to such direct regulation of the ocean fisheries by the

Commerce Department, or to any possible indirect

regulation by the Oregon-Washington Compact Com-

mission,’ “should first be addressed to those agencies.”

Ibid. Because challenges to agency actions “with re-

gards to ocean fisheries are beyond the scope of this

litigation,” Pet. App. C31, they normally would have

to be pursued in a separate case. However, the court

left open the possibility that challenges to actions of

the Commerce Department or the Compact Com-

mission “may be appropriate before [the district]

Court,” but only “after all other remedies are ex-

hausted.” Jd. at C30.

b. The district court also approved the 1988 Plan

as modified, Pet. App. B2-B3, for reasons explained

in a separate opinion, United States v. Oregon, 699

F. Supp. 1456 (D. Or. 1988). In that separate opin-

ion, the court specifically addressed and rejected not

only the objections of Idaho and the Shoshone-

Bannock Tribes, but also the objections of petitioner

and other amici curiae. 699 F. Supp. at 1461, 1468-

1469; see also Pet. App. A58, C40."

®*Oregon and Washington are parties to the Oregon-

Washington Columbia River Fish Compact, Act of Apr. 8,

1918, ch. 47, 40 Stat. 515, which provides a system to assure

uniformity in regulation of the fish resources by both States

on the interstate portion of the Columbia River’s mainstream

from the River’s mouth to its confluence with the Snake River.

7 The court rejected petitioner’s contention that the 1988

Plan violated the Magnuson Act and its treaty right to take

4. On petitioner’s appeal, the court of appeals

affirmed the district court’s denial of petitioner’s mo-

tion to intervene solely on the ground that the motion

was untimely. Pet. App. A44-A57. In the consoli-

dated appeal by Idaho and the Shoshone-Bannock

Tribes, the court of appeals also affirmed the district

court’s rejection of their objections to the Plan on

the merits. Pet. App. A9-A44, A59. Idaho and the

Shoshone-Bannock Tribes have not sought review of

that holding approving the Plan. The court of ap-

peals did not review petitioner’s substantive objec-

tions to the 1988 Plan, which had been considered and

rejected by the district court, because petitioner’s

“status is similar to that of an amicus curiae,” who

“may not appeal the [district] court’s decision.” Pet.

App. A58.

In this Court, petitioner no longer seeks review of

the denial of intervention for purposes of opposing

the district court’s approval of the 1988 Plan, and

it has abandoned its objections to the Plan. See Pet.

23-24, 51 n.37.° It now seeks intervention princi-

paily to participate in future annual negotiations

under the Plan (Pet. 23-24).

fish from the ocean, noting that this action is restricted to

rights to take fish from the Columbia River. The court also

rejected petitioner’s contentions that the United States’ par-

ticipation in the Plan violated its trust responsibilities to

petitioner and that an environmental impact statement should

have been prepared in connection with the Plan. 699 F. Supp.

at 1468-1469.

8In its petition for rehearing (at 1 n.1) in the court of

appeals, petitioner for the first time abandoned its objections

to the Plan and sought to limit its intervention to subsequent

proceedings in the case. See Pet. 23-24. Petitioner’s opening

brief had requested the court of appeals to “reverse the [dis-

trict court’s] order approving the Plan” (Pet. C.A. Br. 51).

ARGUMENT

The court of appeals correctly held that the dis-

trict court did not abuse its discretion in denying

petitioner’s motion to intervene in this case on the

ground that the motion was untimely. That fact-

bound determination, in the context of this complex

case, does not warrant review by this Court, espe-

cially since participation by petitioner to advance

its interests in taking fish from the Pacific Ocean

would greatly expand the scope of this case. As the

courts below held, and as petitioner does not dispute,

petitioner’s ocean fishery is instead subject to direct

and exclusive regulation by the Secretary of Com-

merce under the Magnuson Act. Petitioner objects

that the court of appeals, in affirming the district

court’s ruling that its motion to intervene was un-

timely, did not consider a factor that has been con-

sidered by some other courts of appeals—namely, pos-

sible prejudice to the applicant if intervention is de-

nied. However, petitioner did not raise that issue in

the court of appeals by requesting that court to in-

clude an additional factor in its timeliness determi-

nation, and the district court in any event found that

petitioner’s interests would not be impaired by the de-

nial of intervention. Petitioner’s belated effort to

interject that issue into this case therefore does not

warrant this Court’s review.

1. If a motion to intervene is untimely, as peti-

tioner’s motion was held to be by the courts below, it

“must be denied” under Fed. R. Civ. P. 24. NAACP

v. New York, 413 U.S. 345, 365 (1973). A district

court’s determination on the question of timeliness

will not be disturbed on review unless it constitutes

an abuse of discretion. Jd. at 366. Here, as the court

of appeals held, the district court did not abuse its

discretion in finding petitioner’s motion untimely.

In accordance with established Ninth Circuit prec-

edent, including its decision on a prior appeal in this

case involving Idaho’s motion to intervene, the court

of appeals considered “three criteria to evaluate

timeliness: the stage of the proceeding, prejudice to

other parties, and the reason for and length of the

delay.” Pet. App. A48 (citing United States v. Ore-

gon, 745 F.2d at 552). The court acknowledged that

although this action has been underway for almos*

20 years, the length of time that has passed is not

alone dispositive. Nevertheless, as the court recog-

nized, petitioner’s motion was extremely belated. Pet.

App. A48-A52.

This is not an instance in which the applicant re-

quested intervention at the beginning of the remedial

stage of a case. Pet. App. A48-A50. Petitioner

sought to intervene 19 years after judgment was

entered; after the parties had already operated under

one fishery management plan, had been ordered by

the district court to negotiate another such plan, and

had conducted such negotiations over a five-year pe-

riod; and after the Plan agreed to by the United

States, the States of Oregon and Washington, and the

four Columbia River tribes had been submitted to

the court for its approval. As both courts below con-

cluded, the existing parties would have been seri-

ously prejudiced if petitioner had been permitted to

intervene, because its challenges could have upset the

delicate balance reflected in the complex and care-

fully negotiated Plan. Jd. at A48, A52-A54, C19-

C20.

Petitioner now insists (Pet. 47-48) that the par-

ties’ efforts in negotiating the Plan, and obtaining

- judicial approval of it, would not be upset if peti-

tioner’s intervention were limited to future participa-

tion in the case, and specifically to participation in

negotiations under the Plan. As the court of appeals

pointed out (Pet. App. A51), however, petitioner did

not request such limited intervention in the district

court, and the district court concluded that limited

intervention was not feasible. Indeed, petitioner did

not abandon its efforts to intervene to oppose the

Plan until after the court of appeals rendered its

decision. See Pet. 23-24. The courts below there-

fore cannot be faulted for failing to approve the nar-

rower scope of intervention petitioner is now pre-

pared to accept.

Furthermore, the basis for petitioner’s participa-

tion (protection of its interest in taking fish from

the Pacific Ocean) would have greatly expanded the

geographic scope of the litigation. In fact, to the

extent petitioner once sought to intervene in this case

in order to obtain an adjudication and protection of

its treaty right vis-a-vis the rights of the four

Columbia River tribes, petitioner in effect sought to

require the United States to convert this action into

one brought by the United States on behalf of peti-

tioner to protect its ocean fishery, or to overcome the

sovereign immunity of the United States and the

Columbia River tribes in order to accomplish such an

adjudication over their objections. Such an expan-

sion of the suit might have required joinder of others

Laving an interest in fishing in the Pacific Ocean as

well. As the court of appeals observed, “[t]he dis-

trict court concluded that at this stage, it is too late

in the proceeding to change the nature of the suit so

dramatically,” and ‘“[i]n light of the district court’s

discretion to control the course of proceedings before

it, this decision was not an abuse of discretion.” Pet.

App. A52 (citation omitted). That is especialiy so

because Congress enacted the Magnuson Act in 1976,

after the judgment in this case was entered in 1969,

to place ocean fisheries under a different regulatory

mechanism.°

It presumably is for these reasons that petitioner

has abandoned any effort to intervene to challenge ke

the 1988 Plan, which simply implements the judg-

ment declaring the in-river fishing rights of the other

tribes. But because the 1988 Plan itself rests on the

premise that the scope of this case is limited to the

taking of fish from the Columbia River System—and

because petitioner’s fishing rights lie outside that

System—it would be particularly odd, in view of pe-

tioner’s acquiescence in the holding below that it may

not intervene to challenge the Plan, to find that pe-

tioner nevertheless has a right to intervene to par-

ticipate in implementing the Plan.”

® The court of appeals correctly noted that the proposed

intervention by petitioner was readily distinguishable from

the intervention by Idaho, the Shoshone-Bannock Tribes,

and the Colville Tribes, which did not alter the geographic

scope of the litigation. Pet. App. A51-A52. Contrary to peti-

tioner’s assertion (Pet. 51-53), the mecessary expansion of

the geographic scope of the case is not a factor unrelated to

the timeliness of intervention. The greater the passage of

time since entry of the original decree, during which the

parties adjusted to and operated under provisions of limited

geographic reach, the less basis there is for disturbing those

established patterns of judicial administration and related

governmental regulation.

1©Tn any event, the Plan does not preclude participation

by petitioner. For example, in the Plan section governing fall

chinook salmon (§ IT.1.5.), upon which petitioner relies (Pet.

16-17), the Plan contemplates conferral and agreement among

“management entities” with respect to ocean and in-river fish-

Finally, because petitioner offered no explanation

for its delay in seeking intervention, Pet. App. C19,

the district court plainly did not abuse its discretion

in finding that the third of the factors relevant to

the timeliness inquiry—the reason for and length of

the applicant’s delay—weighed against intervention.

Id. at C20. In the court of appeals, petitioner sought

to correct this defect by arguing that it did not know

that its interests would be affected by the proceedings

in this case. See Jd. at A54. This argument is

unavailing. In the first place, petitioner is not sig-

nificantly affected by this case, because its interests

are in taking fish from the Pacific Ocean, not the

Columbia River System, and, as petitioner concedes

(Pet. 19-20), the courts below made clear that the

Secretary of Commerce is not bound by proceedings

in this case in setting ocean-fishing quotas under the

Magnuson Act. The district court expressly rejected

the notion that the 1988 Plan “overlaps or usurps

the authority of the PFMC under the Magnuson Act,

as Section I B 6 of the 1988 Plan-specifically recog-

nizes the preemptive authority of acts of Congress,”

and it pointed out that “[t]he parties have indicated

that they recognize [these] limits of the agreement.”

Pet. App. C26; see id. at A47 (court of appeals notes

ing regimes. Insofar as ocean fishing is concerned, the term

“management entities” encompasses petitioner, as part of the

negotiation process leading to the formulation of the PFMC’s

recommendations to the Secretary of Commerce under the

Magnuson Act. In addition, the Plan provides for distribu-

tion to such management entities of materials and reports

developed by advisory committees established under the Plan.

Seo Gov’t C.A. App. 23-24; Resp. Tribes and States Jt. C.A.

Br. 34-35.

district court’s holding that ‘“‘the plan does not bind

the federal officials’’)."’

Second, to whatever extent petitioner’s interests

may be indirectly affected—because the PFMC will

take into account actions proposed by management

entities responsible for implementing the 1988 Plan

(see Pet. 14-17), oy because those management enti-

ties in turn will evaluate the ocean fisheries as well

as the in-river fisheries—the district court found that

petitioner was aware of the status of this case and

the negotiations as early as 1983. Pet. App. C18-

C19. The court of appeals sustained that finding,

noting that interim plans adopted pricr to 1988 re-

ferred to ocean fisheries as well as in-river fisheries,

that petitioner had made repeated inquiries about

the negotiations, and that although petitioner claimed

on appeal that it had been deceived about their scope,

it had not raised that argument before the district

court. 7d. at A55-A56. That fact-bound ruling does

not warrant review by this Court.

2. Petitioner contends (Pet. 24-40) that in decid-

ing whether the motion to intervene was untimely,

the court of appeals should have considered a factor

in addition to the stage of the proceedings, prejudice

to existing parties that would result from petitioner's

intervention, and the reasons for and length of peti-

tioner’s delay in seeking intervention—namely, the

extent to which petitioner’s interests would be preju-

diced if intervention was denied. Petitioner urges the

Court to grant certiorari to resolve a circuit conflict

1! Because petitioner is not legally bound by any actions

taken in this case, Martin v. Wilks, 490 U.S. 755 (1989), on

which petitioner relies (Pet. 54-58), is of no relevance.

Martin v. Wilks did not address the question of when an at-

tempt to intervene should be regarded as untimely.

on the question whether prejudice to the applicant

should also be considered. /bid. The asserted circuit

conflict may be more apparent than real, but it does

not in any event warrant review in this case.

In recent decisions this Court has declined to re-

view, the Third, Fourth, and Eighth Circuits have

considered essentially the same three factors upon

which the court below relied. Donovan v. United

Steelworkers, 721 F.2d 126, 127 (38d Cir. 1983),

cert. denied, 467 U.S. 1252 (1984); Gould v. Alleco,

883 F.2d 281, 286 (4th Cir. 1989), cert. denied,

110 S. Ct. 870 (1990); Jenkins by Agyei v. Mis-

souri, 855 F.2d 1295, 1316-1318 (8th Cir. 1988),

cert. denied, 490 U.S. 1034 (1989) (as explained in

Missouri v. Jenkins, 110 S. Ct. 1651, 1659-1660

(1990) ). Five other Circuits have, in addition, con-

sidered prejudice to the would-be intervenor—a fac-

tor identified in Stallworth v. Monsanto Co., 558 F.2d

257, 264-266 (5th Cir. 1977). But although Stall-

worth held that the intervention request was timely,

its holding, based on the application of other factors,

made it unnecessary to consider the additional factor

petitioner urges. 558 F.2d at 267. See also Jones vy.

Caddo Parish School Board, 735 F.2d 923, 936-937

(5th Cir. 1984) (en bane) (holding that all four

factors militated against timeliness and giving no

decisive weight to any single factor). It likewise

does not appear that any of the four other courts of

appeals has assigned any controlling weight to this

additional factor, or that it has proven to be decisive

in many cases.” The identification of this additional

"The Stallworth ‘“four-factor’” formulation has been an-

nounced, with some qualification, in the following four

Circuits:

First: Caterino v. Barry, 922 F.2d 37, 40-43 (1st Cir. 1990)

(all four factors disfavor timeliness) ; Fiandaca v. Cunning-

factor by some courts of appeals therefore does not

present the sort of concrete circuit conflict that war-

rants resolution by this Court.

Even if we assume, however, that the issue peti-

tioner raises might warrant review at some time, this

is not the appropriate case. Petitioner did not re-

quest the Ninth Circuit panel to consider the addi-

tional factor it now says is critical to the timeliness

determination; it instead contended that it satisfied

the three-factor test for timeliness of intervention

under the Ninth Circuit’s decision on a prior appeal

in this case, United States v. Oregon, 745 F.2d at

ham, 827 F.2d 825, 834-835 (1st Cir. 1987) (all four factors

favor timeliness) ; Culbreath v. Dukakis, 630 F.2d 15, 20 (1st

Cir. 1980) (all four factors disfavor timeliness).

Second: Farmland Dairies v. New York State Dep’t of

Agric., 847 F.2d 10638, 1043-1044 (2d Cir. 1988) (four factors

are not exhaustive but are “guide[s]” in assessing totality of

circumstances as to timeliness; factors disfavor timeliness).

Seventh: City of Bloomington v. Westinghouse Elec. Corp.,

824 F.2d 531, 534-537 (7th Cir. 1987) (all four factors dis-

favor timeliness) ; United States v. Kemper Money Mkt. Fund,

704 F.2d 389, 391 (7th Cir. 1983) (factors favor timeliness) ;

but cf. United States v. City of Chicago, 897 F.2d 248 (7th Cir.

1990) (intervention request for leave to appeal an anti-

discrimination case settled by original parties held untimely:

four factors not discussed).

Eleventh: Walker v. Jim Dandy Co., 747 F.2d 1360, 1364,

1366 (11th Cir. 1984) (district court instructed to consider

several factors, including prejudice to applicant, with no mer-

tion of relative weight to be given each factor) ; United States

Vv. Jefferson County, 720 F.2d 1511, 1517-1519 (1ith Cir.

1983) (all four factors disfavor timeliness; prejudice to the

would-be intervenor, is not “sufficient” to give it weight where

the applicant ‘‘could not be bound” by the judgment (see

Martin v. Wilks, supra) or where the applicant’s interests are

“adequately represented” by an existing party, 720 F.2d at

1517).

552. See Pet. C.A. Br. 28-34; Pet. C.A. Reply Br.

15-22. And although petitioner filed a suggestion

of rehearing en banc, it did not request the en banc

Ninth Circuit to overrule circuit precedent and

adopt a four-factor test; to the contrary, petitioner

once again endorsed the three-factor test applied in

United States v. Oregon and by the panel below. Pet.

C.A. Reh’g Pet. 5. This Court has traditionally

declined to consider issues that were neither raised

nor decided below, and there is no reason to depart

from that practice in this case.

Here, the district court considered all factors gov-

erning intervention, not just timeliness. As a result,

it considered whether petitioner’s interest was such

that “‘the disposition of the action may as a practical

matter impair or impede the applicant’s ability to

protect that interest,” Fed. R. Civ. P. 24(a) (2); see

Pet. App. C20-C31, and found that petitioner would

not be prejudiced if intervention was denied. Jd. at

C28-C29, C35. The district court held that petition-

er’s interests in its ocean fishery were only indirectly

affected, id. at C26-C27, C30-C31, that petitioner had

other remedies under the Magnuson Act, id. at C27-

C28, and that challenges to those or other determina-

tions “as to regulation of anadromous fish within the

Columbia River” might be presented to the court

“after all other remedies have been exhausted.” /d.

at C30. Accordingly, specific consideration of possible

prejudice to petitioner’s interests would have had no

bearing on the finding by both courts below that its

motion to intervene was untimely. Moreover, if peti-

tioner had argued to the Ninth Circuit that possible

prejudice to its interests should be considered on the

threshold question of timeliness, the panel or en banc

court would have had a record on which to address

that question. Petitioner should not be permitted to

bypass orderly appellate processes by presenting that

arcument for the first time in this Court.

3. As the district court concluded (Pet. App. C30),

since petitioner’s ocean fishery is subject to an en-

tirely different regulatory regime under the Magnu-

son Act, petitioner should advance its interests in sep-

arate proceedings under that Act. The management

of ocean chinook salmon fisheries off the Washington

coast, an important component of petitioner’s treaty

fishery, is governed by the 1984 “Framework

Amendment” to the Fishery Management Plan, as

amended. 50 C.F.R. Pt. 661. Annual pre-season

management specifications under the Framework

Amendment process are formulated between March

ar.d May of each year. 50 C.F.R. Pt. 661, App.

Il.A. Public hearings conducted by the Pacific

Fishery Management Council assure input by the

public, including petitioner. Additionally, in a series

of meetings, the PFMC prepares its recommended

management specifications for action by the Secre-

tary of Commerce. See, e.g., Notice of 1990 Fishery

Management Measures and Request for Comments,

55 Fed. Reg. 18,894, 18,895 (Mav 7, 1990). Section

302(i) of the Magnuson Act, 16 U.S.C. 1852(i), re-

quires such PFMC meetings and PFMC committee

meetings to be public, except for meetings pertaining

to national security, employment matters, or brief-

ings on litigation.

Nevertheless, petitioner contends (Pet. 38, 55) that

relief under the Magnuson Act is barred by another

decision of the court of appeals, Makah Indian Tribe

v. Verity, 910 F.2d 555 (9th Cir. 1990) (discussed in

note 5, supra). Verity in no way curtails petition-

er’s rights under the administrative procedures just

described. Nor does it foreclose all judicial relief.

In Verity, petitioner sued the Secretary of Commerce

challenging limits to ocean fishing quotas for the

1987 season. Both the district court and the court

of appeals held that what petitioner was actually

seeking was a favorable reallocation of the 1987 fish

harvest theretofore allocated to other Indian treaty

fisheries of other tribes. 910 F.2d at 557, 559. The

court of appeals concluded that the absent tribes were

indispensable parties to such an adjudication, and

that because of tribal sovereign immunity they could

not be joined without their consent; accordingly, the

portion of the case seeking reallocation of the Indian

treaty harvest was dismissed. Jd. at 557, 560. How-

ever, the Ninth Circuit reinstated the claims of

petitioner that sought prospective relief concerning

alleged defects in the administrative procedures fol-

lowed by the Commerce Department in adopting

Magnuson Act regulations. It thus is a considerable

overstatement for petitioner to claim (Pet. 55) that

Verity bars any “separate action to challenge the re-

sults of * * * the * * * ocean management process”

under the Magnuson Act. And even if Verity had

done so, petitioner chose not to seek immediate re-

view of the interlocutory decision in that case, and

there will be time enough for petitioner to seek fur-

ther review in Verity (or to seek other relief) fol-

lowing the proceedings on remand.

Finally, whatever disadvantage Verity may pre-

sent for petitioner results not from any proceedings

in this case, but from the independent bar of sov-

ereign immunity, which protects petitioner and other

Indian tribes from unconsented suits to adjudicate

their rights in fisheries and other natural resources.

The invocation of sovereign immunity in Verity

should not serve as a justification for petitioner to

obtain certiorari or intervention in this separate case.

Wichita & Affiliated Tribes v. Hodel, 788 F.2d 765,

777 (D.C. Cir. 1986); Lomayaktewa v. Hathaway,

520 F.2d 1324, 13826 (9th Cir. 1975), cert. denied,

425 U.S. 903 (1976).

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.