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A.D. v. Washburn

United States District Court, D. Arizona

September 29, 2016

A.D., C.C., L.G., and C.R., by Carol Coghlan Carter, and Dr. Ronald Federici, their next friends; S.H. and J.H., a married couple; M.C. and K.C., a married couple; K.R. and P.R., a married couple; for themselves and on behalf of a class of similarly-situated individuals, Plaintiffs,
Kevin Washburn, in his official capacity as Assistant Secretary of Indian Affairs, Bureau of Indian Affairs; Sally Jewell, in her official capacity as Secretary of the Interior, U.S. Department of the Interior; Gregory A. McKay, in his official capacity as Director of Arizona Department of Child Safety, Defendants.


          Neil V. Wake Senior United States District Judge

         Before the Court are the Motion of the Gila River Indian Community to Intervene as Defendant (Doc. 47) and the Amended Motion to Intervene by the Navajo Nation (Doc. 198). Defendants Kevin Washburn and Sally Jewell (“Federal Defendants”) consent to the motions, Defendant Gregory McKay (“State Defendant”) takes no position, and Plaintiffs oppose the motions. Oral argument was heard on September 28, 2016.

         I. BACKGROUND

         Plaintiffs filed this action on behalf of themselves and all off-reservation Arizona-resident children with Indian ancestry and all off-reservation Arizona-resident foster, preadoptive, and prospective adoptive parents in child custody proceedings involving children with Indian ancestry. Plaintiffs seek a declaration that provisions of the Indian Child Welfare Act (“ICWA”), specifically 25 U.S.C. §§ 1911(b), 1912(d), 1912(e), 1912(f), 1915(a), 1915(b), and the 2015 Guidelines issued by the Bureau of Indian Affairs, §§ A.2, A.3, B.1, B.2, B.4, B.8, C.1, C.2, C.3, D.2, D.3, F.1, F.2, F.3, F.4, violate the United States Constitution, federal civil rights statutes, and Title VI of the Civil Rights Act. They seek to enjoin the Federal Defendants from enforcing these provisions and the State Defendant from complying with and enforcing these provisions. In addition, Plaintiffs allege that ICWA exceeds the federal government's power under the Indian Commerce Clause and the Tenth Amendment, but do not expressly seek a declaration that all of the provisions of ICWA are unconstitutional.

         Plaintiff C.C. is an enrolled member of the Navajo Nation. Parental rights of C.C.'s birth parents were terminated, and adoption of C.C. by Plaintiffs M.C. and K.C. was finalized by the state court in November 2015.

         Plaintiff A.D. is an enrolled member of the Indian Community. Plaintiff C.R. is eligible for membership in and is a child of a member of, or is already an enrolled member of, the Indian Community. Plaintiff L.G. is C.R.'s half-sibling and is not eligible for membership in the Pascua Yaqui Tribe of Arizona. Parental rights of A.D.'s, C.R.'s, and L.G.'s birth parents have been terminated by the state court, which is treating C.R.'s and L.G.'s cases as one.

         The Gila River Indian Community (“Indian Community”) and the Navajo Nation are both federally recognized tribes and seek to intervene as of right as defendants in this case and, in the alternative, to intervene permissively.


         A. Legal Standard

         On timely motion, the court must permit anyone to intervene who “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). “Courts are guided primarily by practical and equitable considerations.” Arakaki v. Cayetano, 324 F.3d 1078, 1083 (9th Cir. 2003).

         “[A]n applicant for intervention as of right must demonstrate that: (1) the intervention application is timely; (2) the applicant has a significant protectable interest relating to the property or transaction that is the subject of the action; (3) the disposition of the action may, as a practical matter, impair or impede the applicant's ability to protect its interest; and (4) the existing parties may not adequately represent the applicant's interest.” Prete v. Bradbury, 438 F.3d 949, 954 (9th Cir. 2006) (citations omitted). The requirements are broadly interpreted in favor of intervention. Citizens for Balanced Use v. Montana Wilderness Ass'n, 647 F.3d 893, 897 (9th Cir. 2011). However, “[f]ailure to satisfy any one of the requirements is fatal to the application.” Perry v. Proposition 8 Official Proponents, 587 F.3d 947, 950 (9th Cir. 2009).

         Timeliness. Three factors are considered to determine whether an intervention motion is timely: (1) the stage of the proceeding when the motion is filed; (2) the prejudice to other parties; and (3) the reason for and length of the delay. League of United Latin Am. Citizens v. Wilson, 131 F.3d 1297, 1302 (9th Cir. 1997).

         Interest. To demonstrate a related significant protectable interest, the applicant must show an interest that is protectable under some law and there is a relationship between the legally protected interest and the claims at issue. Arakaki, 324 F.3d at 1084. The “relationship” requirement generally is satisfied only if the resolution of the plaintiff's claims actually will affect the applicant. Id. The applicant may not inject unrelated issues into the pending litigation. Id. The applicant need not establish a specific legal or equitable interest, but an economic stake in the outcome of the litigation is not sufficient. Greene v. United States, 996 F.2d 973, 976 (9th Cir. 1993).

         Potential impairment of interest. “The question of whether protectable interests will be impaired by litigation must be put in practical terms rather than in legal terms.” Akina v. Hawaii, __ F.3d __, 2016 WL 450186, *5 (9th Cir. Aug. 29, 2016) (citation omitted). Where the applicant remains free to bring a separate action or pursue alternative means of achieving its ultimate objective, the disposition of the action may not impair or impede the applicant's ability to protect its interest. See Id. “Speculative possibility” of future impairment of an interest does not outweigh the interjection of unnecessary and distracting considerations by an intervenor. United States v. Washington, 593 F.3d 790, 801 (9th Cir. 2010) (treaty tribes were not entitled to intervene in recognition proceedings even though a newly recognized tribe might assert treaty rights in the future). However, a court must consider whether factual and legal ...

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