# Opposition Brief — Makah Indian Tribe v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1991
- **Citation:** 501 U.S. 1250

## Text

No. 90-1595 JUN &

| Supreme Court, US 7

@ FiLED

St

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

27

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)

IV

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

Vv

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)

2

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

3

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).

4

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.

5

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.

6

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

7

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.

8

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

9

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

10

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).

11
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

12

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

13

- 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

14

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-

15

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.

16

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.

17

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-

18

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).

19

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

20

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.

21

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

22

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.

KENNETH W. STARR
Solicitor General

RICHARD B. STEWART
Assistant Attorney General

ROBERT L. KLARQUIST
Dirk D. SNEL
Attorneys

JUNE 1991

W ou. S. GOVERNMENT PRINTING OFFICE; 1991 282061 20586

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1940%3A2. Public record. Not legal advice.