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State of Oklahoma v. Tyson Foods, Inc.

State of Oklahoma v. Tyson Foods, Inc., Case No. 09-5134 (C.A. 10., Sep. 21, 2010)

The Cherokee Nation (the Nation) appeals the district court’s denial of its motion to intervene in a dispute between the State of Oklahoma (the State) and Defendants-Appellees (collectively, Tyson). The State had sued Tyson because of Tyson’s disposal of poultry waste in the Illinois River Watershed (IRW). The IRW, in which both the State and the Nation claim interests, covers approximately one million acres straddling the Oklahoma-Arkansas border. Within it are hundreds of large-scale poultry farms. Tyson operates some of these farms and contracts with other farmers to raise poultry until maturity, using methods established by Tyson; Tyson collects the poultry at maturity for processing and marketing. These poultry-growing operations generate hundreds of thousands of tons of poultry waste each year.

Raising a number of legal theories, the State sought monetary relief for past and future damages and an injunction against alleged pollution. More than three years into the litigation, Tyson moved to dismiss the monetary claims on the ground that the Nation was a required party that had not been joined. The State argued that the Nation was not a required party but also negotiated an agreement in which the Nation purportedly assigned the State its interests in the litigation. The district court ruled that the agreement was invalid and granted Tyson’s motion, restricting the previously scheduled trial to the State’s claims for injunctive and other equitable relief.

Nineteen days before trial the Nation moved to intervene so that it could proceed on three claims against Tyson for injunctive and monetary relief. The district court denied the motion as untimely. Although the Nation argued that it had moved promptly after learning that the State could not adequately represent the Nation’s interests in the litigation, the district court ruled that the Nation had delayed too long, that Tyson would be severely prejudiced by the lengthy trial delay that would be necessary if the Nation were permitted to intervene, and that the Nation would not be prejudiced by a denial of intervention.

We have jurisdiction under 28 U.S.C. § 1291, see WildEarth Guardians v. U.S. Forest Service, 573 F.3d 992, 994 (10th Cir. 2009) (order denying intervention was final), and affirm. The district court did not abuse its discretion in denying the motion to intervene. In particular, the district court could properly find that the Nation had unduly delayed seeking to intervene because from the outset of the litigation it had no reason to believe that the State would represent its interests in monetary relief.
 

 

Judge(s): Harris Hartz
Jurisdiction: U.S. Court of Appeals, Tenth Circuit
Related Categories: Civil Procedure , Environmental
 
Circuit Court Judge(s)
David Ebel
Harris Hartz
Deanell Tacha

 
Plaintiff Lawyer(s) Plaintiff Law Firm(s)
Robert Blakemore Bullock Bullock & Blakemore PLLC
Louis Bullock Bullock Bullock & Blakemore PLLC
Frederick Baker Motley Rice LLC
Ingrid Moll Motley Rice LLC
Richard Garren Riggs Abney Neal Turpen Orbison & Lewis PC
Sharon Gentry Riggs Abney Neal Turpen Orbison & Lewis PC
Robert Nance Riggs Abney Neal Turpen Orbison & Lewis PC
David Page Riggs Abney Neal Turpen Orbison & Lewis PC
M. David Riggs Riggs Abney Neal Turpen Orbison & Lewis PC

 
Defendant Lawyer(s) Defendant Law Firm(s)
Woodson Bassett III Bassett Law Firm
Vince Chadick Bassett Law Firm
James Graves Bassett Law Firm
K.C. Tucker Bassett Law Firm
Gary V. Weeks Bassett Law Firm
Vicki Bronson Conner & Winters LLP
John Elrod Conner & Winters LLP
Delmar Ehrich Faegre Baker Daniels LLP
Bruce Jones Faegre Baker Daniels LLP
Krisann Lee Faegre Baker Daniels LLP
Michael Bond Kutak Rock LLP
Philip Hixon McDaniel Hixon Longwell & Acord, PLLC
Nicole Longwell McDaniel Hixon Longwell & Acord, PLLC
A. Scott McDaniel McDaniel Hixon Longwell & Acord, PLLC
George Owens Owens Law Firm PC
Randall Rose Owens Law Firm PC
Robert Redemann Perrine Redemann Berry Taylor & Sloan PLLC
Theresa Hill Rhodes Hieronymus Jones Tucker & Gable PLLC
John Tucker Rhodes Hieronymus Jones Tucker & Gable PLLC
Thomas Green Sidley Austin LLP
Mark Hopson Sidley Austin LLP
Jay Jorgensen Sidley Austin LLP
Virginia Seitz Sidley Austin LLP
Robert George Tyson Foods, Inc.
Timothy Jones Tyson Foods, Inc.
Robert Sanders Young Williams PA

 
Appellant Lawyer(s) Appellant Law Firm(s)
A. Diane Hammons Office of the Cherokee Nation Attorney General
Sara Hill U.S. Department of Justice

 

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holder of all natural resources within the state's boundaries "in trust on behalf of cherokee nation knew of its interest in this case from the outset of the litigation." exceeded the bounds of permissible choice in the circumstances." phelps v. -10- of action that were previously dismissed, the consequent for defendants - appellees. trustee for `natural resources' in, belonging to, managed by, held in trust by, on june 13, 2005, the state sued tyson in the united states district court laws and treaties have given it ownership and control over lands, waters, and id. thus, until the district court resolved tyson's rule 19 motion on july 22, and the resulting damages." id. at 630. again, however, the state's complaint in my view, tyson is at least partly responsible for that timing. furthermore, tyson should in the irw, alleged cercla claims for cost-recovery and damages and a for damages, defendants face a real and substantial risk the cherokee hartz, circuit judge. doing just what the nation would have wanted. but the nation's interests that are applicant. would be caused by a trial delay when not long before the nation sought to congruent with respect to the cercla claims--they both sought to recover not adequately presented to the district court. res judicata is not mentioned in particular, with respect to these interests the nation could not point to some event done before trial had the court permitted intervention. in any event, those limitations issues, a new round of motions for summary judgment id. at 905. the tyson attorney obviously thought that these comments were to cease its disposal methods and remediate the irw. id. at 24. the fifth claim to the lands, waters, and biota of the irw. the complaint further alleged that limitations barred its claims. the entire discussion of the specific prejudice in this case consists of the -10- -9- the complaint was later amended on two occasions. the first amended under fed. r. civ. p. 19(b) (setting standard for dismissal of claims when aplt. app., vol. 4 at 688. providing [tyson] with an unwarranted and unjust escape from liability for -20- oklahoma, v. clinton, 255 f.3d 1246, 1250 (10th cir. 2001) (internal quotation marks decide that the nation (and the state) were taking an unreasonable risk by putting the state and the nation argue that tyson has exaggerated the burden of pales in comparison to the loss of time and money the state will potentially suffer interests of the unnamed class members would no longer be protected by the aplt. app., vol. 5 at 92728. omitted). likewise, an applicant under rule 24(a)(2) "is [generally] entitled to that defense until june 26, 2008, when it served the state with discovery requests each other." oneida indian nation v. madison cnty., 605 f.3d 149, 162 (2d cir. 2009, the nation could have, in reliance on coeur d'alene ii, reasonably believed be significant. see culbreath v. dukakis, 630 f.2d 15, 22 (1st cir. 1980) ("the protected by the named class representatives.") (emphasis added). with respect seeking documents regarding agreements and communications between the state granted a motion to intervene if it had been made earlier. rather, the court's unusual circumstance--the significant loss the state will potentially incur if the in this case, the district court held that the nation is a "necessary party," time tyson filed its rule 19 motion. maj. at 24. i disagree. in my view, at the guess those reasons. compensable value of lost services resulting from the injury to such natural nation could no longer reasonably believe its interests were adequately costs of delay.) -6- u.s. 385, 394 (1977) (ellipsis omitted)); legal aid soc'y of alameda co. v. damages and/or response costs."). thus, if the nation is excluded from this became clear that the interests of the unnamed class members would no longer be argued that the nation was not a required party but also negotiated an agreement rule 19 motion. rather, i only point out that until that motion was resolved, the liable for "all future necessary response costs incurred by the state of oklahoma." 2. prejudice to existing parties interests were adequately represented until the district court deemed it a okla. stat. tit. 27a, 2-6-105, 2-3-504; the oklahoma agricultural code, see protection of the clearly erroneous standard, but are subject to de novo review."). ("when the applicant appears to have been aware of the litigation but has delayed the right of the cherokee nation to pursue its own claim for money [(2)] prejudice to the existing parties; [and (3)] prejudice to the [movant]." id. id. at 92728. was initially filed, it "can still be charged with a delay of almost a year," from the -7- reference to the need for this work explained why intervention would require a fed. r. civ. p. 24(a)(2) provides, in pertinent part, as follows: resources located within the [irw]." id. at 532. the agreement, which was agreements with indian tribes; (2) that the attorney general of the nation was appertaining to or otherwise controlled by" the state--sought damages for injury storing it and using it as fertilizer on lands within the irw. because the waste a. standard of review time that it was conducting those negotiations; such a motion would have agreement did not meet oklahoma's statutory standards for cooperative appeal from the united states district court release of hazardous substances into the irw, the nation "has incurred, and will could no longer reasonably believe its interests were adequately represented by an weeks away at the time the nation sought to intervene, its intervention and the trial these past four-plus years. trial delay it would cause would significantly disrupt tyson's attorneys' and concerned that the proposed lawsuit would, in effect, put them out of in denying the motion to intervene. in particular, the district court could properly all their eggs in the negotiated-agreement basket. a potential intervenor cannot thomas c. green, mark d. hopson, sidley austin llp, washington, d.c.; resuscitation of numerous motions pertaining to those causes of "nation is entitled to recover from [tyson] all of the [nation's] past and present the assignment of state-law claims not arising out of contract (thereby negating dunlop, 618 f.2d 48, 50 (9th cir. 1980) ("[t]he relevant circumstance here for and firm conviction that the lower court made a clear error of judgment or ha[s] offered no evidence that an award of damages from [tyson] to the state the state's third and fourth claims were based on state and federal nuisance law. aplt. app. vol. v at 92728 (emphasis added). because the district court did not, federal-nuisance-law claim for damages and injunctive relief. the next day, the maine foods, inc.; cargill, under rule 19(a)[]." fed. r. civ. p. 24, 1966 amendment note. request for intervention untimely. "the requirement of timeliness is not a tool of elisabeth a. shumaker met with representatives of both tyson and the state. the nation discussed its lawsuit it could very well affect any later lawsuit. necessary response costs" and to a declaratory judgment that tyson is liable "for its motion to intervene. and the only references to the doctrine at the hearing on of failure to join a required party, tyson did not take any formal steps regarding regarding the cercla trustee issue. intervene for a number of reasons and the court will not second- without its consent, tyson contended that the damages claims had to be dismissed next, i cannot agree with the majority's assessment of the prejudice that defendant - appellee simmons foods, inc.) (a. scott mcdaniel, nicole m. the district court's denial of the cherokee nation's motion to filed -28- its concern about being subjected to multiple and inconsistent obligations, tyson the intervention itself." clinton, 255 f.3d at 1251 (quotations omitted). in its tons of poultry waste each year. causes of action, both motions for summary judgment and motions in was later voluntarily dismissed with prejudice.1 resource conservation and recovery act, 42 u.s.c. 6972. the second protected it in the event of deadlocked negotiations or, as happened, court in sum, the nation did not delay unduly in seeking to intervene in this intervene untimely, an applicant's motion is generally untimely if: (1) the motley rice, llc, mount pleasant, south carolina; louis w. bullock, robert m. extent that it wishes to be heard if those rights somehow become an appellate 1246, 1250 (10th cir. 2001) ("the requirement of timeliness is not a tool of asserted that the nation was a required party to the lawsuit. see fed. r. civ. p. or claim preclusion, conversely exposes defendants to the risk of -32- of millions of dollars in damages the state initially sought on its own, together in recovered for the nation the cost of assessing injury or the value to the nation of cherokee nation hopes to continue working with the state on water discretion in denying intervention. 1. length of time since the nation knew of its interest such an approach would result in delay and expense, which would state) that it should share in the state's recovery of costs or damages in its tyson from "(1) applying poultry waste to any land within the irw and (2) the claims could be subject to a statute of limitations, that issue would also need likewise, the nation's attempts to facilitate settlement of the case in the ratio or percentage of actual management and control that is exercised by each i respectfully dissent. rule 19(a) and rule 24(a)(2) "are intended to mirror standards or on proper ones improperly applied, they are not entitled to the -11- id. it also said that resetting the trial date would cause severe disruption: irw cannot be affected by the state's lawsuit if it is not also a party. and to the that would not have resulted from an earlier intervention. perhaps a short delay costs already incurred by the nation could not be answered by a state victory in cooperative suit is a realistic possibility. see aplt. app. vol. v at 875 (attorney prejudice to the parties, and prejudice to the nation, the court did not abuse its before the motion to intervene. after all, an earlier motion to intervene--when 2008, a motion seeking to dismiss the case for failure to join the nation. pointing id., vol. 4 at 629. the count then alleges that the nation "has incurred the responsible party or parties for the full amount of the damage, disagreement between the co-trustees, that disagreement would have nation expect to be able to prevail in a damages trial if the state cannot obtain a tyson needed to be able to plan efficiently for trial, the same interest that it that it ever had reason to rely on the state to pursue many of those interests on its v. no. 09-5134 that a trial delay would cause it extreme prejudice. premised on an improper legal standard, it is not entitled to deference. see by each plaintiff over the injured resources, a matter not yet resolved, or even motion must be measured only from when it had reason to recognize that its the delay caused by intervention would have adverse effects (1) on the public in light of the record before the district court regarding undue delay, barred by the doctrine.2 far off, it may have made perfect sense to try negotiating before moving to shortly before it moved to intervene that could explain a sudden effort to united states court of appeals without a legally binding assignment of the cherokee nation's rights aware of the litigation for more than four years before its eve-of-trial motion to raising a number of legal theories, the state sought monetary relief for past pending, the nation and the state entered into an agreement (the agreement) that the district court then ruled that the nation was a required party under fed. cannot or will not represent a potential movant's interest; and the district court a declaration that tyson is responsible for all future response costs that the state to be resolved by successive litigation between the trustees, but it following paragraph: a. diane hammons, attorney general, (sara e. hill, assistant attorney general, riggs, richard t. garren, robert a. nance, david p. page, sharon gentry, riggs, that all the claims relating to tyson's alleged pollution of the irw can be tried the calendar of the court are not so malleable that a several month -30- nation sought to pursue in its proposed complaint. first, insofar as the nation previously thought that it could rely on the state to protect its "interest in court. id. at 647. position of coeur d'alene ii rather than the position of coeur d'alene i as with the first count, the nation may have thought that it would not need to natural resource damages." id. at 416. the state did not so much as hint that it 2009 when it began negotiations with the state to assign it those interests. the state, however, had not sought recovery of past, present, or future response costs appellant. seek future damages because the state would "restore, replace, or acquire the production, llc, support of the nation's motion to intervene. alternative if the intervention is denied. if this cases continues the delayed unduly seeking to intervene, courts generally have been reluctant to allow third, insofar as the nation had an interest in damages for its future operation of the district court (with negative impacts on litigants in other cases). for the northern district of oklahoma. according to the initial complaint, tyson intervene. after all, a party cannot excuse its unreadiness for trial on the ground never have reasonably believed that its interests were adequately represented by 100 f.3d 837, 840 (10th cir. 1996). under the abuse-of-discretion standard, "a kutak rock llp, fayetteville, arkansas, with him on the briefs for defendants - -6- on september 2, 2009, nineteen days before trial was scheduled to begin, there may, of course, be different degrees of clarity of notice that a party four months later, on may 19, 2009, while tyson's rule 19 motion was the complaint did not mention the nation. but the nation was aware of as for the nation's third count, a claim of federal common-law nuisance, adequately representing its interests until shortly before the motion to intervene. was seeking any damages for the nation's benefit. untimely. in my view, the nation did not delay unduly in moving to intervene, district court issued a scheduling order: discovery was to be completed by the nation's second count, for cercla resource damages under interest in a prompt injunction against pollution by tyson and (2) on the efficient the nation filed a motion to intervene as of right under fed. r. civ. p. 24(a). the against allowing the nation to intervene, the majority ignores one obvious -13- witnesses' schedules. to be sure, tyson would suffer some added cost because of a subsequent lawsuit. neither the state nor the nation believes a subsequent jointly trying the injunction and damages claims. although the district court intervene. indeed, even before suit was filed in june 2005, the nation's principal issues, a new round of motions for summary judgment and likely a same ultimate objective in the litigation." clinton, 255 f.3d at 1255. there can the motion are so brief that they would naturally be understood (and may well including a federal common law nuisance claim would trigger more not filed this motion to dismiss and it would be a mistake to assume unsuccessful in its case for injunctive relief currently pending before formal representation like that provided by a trustee for his beneficiary or a be protected by a party already in the case," maj. at 18 (emphasis added), the ignore the prejudice to others that could result from a last-minute intervention. -23- 1994) ("[t]he movants legitimately believed that the forest service would defend for motions set"). and that last-minute delay would create prejudice--prejudice represented. see maj. at 21 ("the nation could never have reasonably thought the same facts. [2] in addition, a loss by the state of oklahoma at delmar r. ehrich, bruce jones, krisann c. kleibacker lee, faegre & benson the state because "[t]he state . . . had not sought recovery of past, present, or of the nation. rather, it sought "all of the state of oklahoma's past and present omitted). the other factors in the test for untimeliness must also be considered. complaint added a count seeking civil penalties and injunctive relief under the claim would trigger more than a 120 day delay. it would require the 2005). timeliness is the sole matter of dispute in this appeal. intervene, the majority first cites the potential need for additional discovery and vol. 5 at 869. but she argued that the motion was timely because the nation had reasonable for [the prospective intervenor] to rely on appellees to argue the issue see tele-commc'ns, inc. v. comm'r, 104 f.3d 1229, indeed, in coeur d'alene ii, judge lodge held: this case was filed over four years and three month ago, and trial is existed at the time the complaint was filed. second, insofar as the nation had an interest in recovering past response robert w. george, vice president and associate general counsel, bryan burns, aplt. app., vol. 4 at 743. llp, minneapolis, minnesota, with him on the briefs for defendants - appellees -3- -8- observations are amply supported by the record. for example, to prepare for the under the federal comprehensive environmental response, compensation, and complaint, except that they alleged the interests of the nation, rather than the hundreds of large-scale poultry farms. tyson operates some of these farms and j.d. strong in his capacity as the additional motions regarding the nation's claims. the fact that intervention may water quality in northeastern oklahoma. assumed from the outset of the suit that the state would adequately represent the named class representatives.'" (quoting united airlines, inc. v. mcdonald, 432 state's eighth claim was for unjust enrichment, seeking restitution and -4- the oklahoma administrative code, see okla. admin. code 35:17-5-5. the need to intervene in that trial; and apparently it never sought to modify its motion tacha, circuit judge, dissenting: the state's claims for damages. it explained that the damages claims could not be it helps the nation little, however, to measure its delay from when it was that have already been filed. parties could suffer: tyson also filed a response on september 10. it contended that the intervene in an action when his position is comparable to a [necessary party] tyson waited to bring its rule 19 defense, the state expended significant time and claims an interest relating to the property or transaction that is the nation's claim by arguing that the nation was responsible for the presence of represented by the state (the interest in past cercla damages and in all time it could no longer reasonably believe its interests were adequately "double the work load" or "add issues" to a case, however, is a product "of be little doubt that the ultimate objectives of the state and the nation were in resolving tyson's rule 19 motion, the district court concluded that "the delay from when the movant was on notice that its interests may not be protected in itself did not concern the district court, which said that it would gladly have the timeliness of a motion to intervene is determined "in light of all of the motion to intervene. consideration. c. motion to intervene concerned that if the state loses at the bench trial on equitable relief, the state event this court were to permit intervention. . . . the filing of an the nation's other prejudice argument fares no better. its rights in the george's, inc.; george's inc.; cargill turkey decided without the nation's involvement: a trial delay only three weeks before trial was set to begin; however, tyson is at prevent last minute disruption of painstaking work by the parties and the court."). our assistance and services in any way that might be helpful to applicant has delayed unduly in bringing its motion to intervene, see 7c charles rights to the waters of the illinois river watershed. by function of over the irw's natural resources. affirms the denial of the nation's motion to intervene. nineteen days before trial the nation moved to intervene so that it could 2 expect the state to protect its interests. in seeking injunctive relief against tyson, -16- the [nation] is trustee," just as the state alleged its trustee status in its complaint. the state filed its suit that the nation would be protected by the suit from than 120 days anticipated by the district court would be something else. with the as we understand the nation's first point--its practical-bar argument--it is nothing in the record directly supports such a belief. not be rewarded for waiting to pursue its rule 19 defense until it would be lawsuit, we will have to, at some point, file a new lawsuit. we will have to try to proposed intervenor moved to intervene `as soon as it became clear that the acknowledged that the nation had "tried very diligently not to become a party to at that time is an issue. whether or not we can afford to do it is a very real there would be some delay were the nation's motion granted, but argued that no on june 30; but it requested only an indefinite "brief postponement," def.'s mot. unjust enrichment to one trustee at the expense of another is to award damages in at 53940 (3d ed. 2007). in this case it is undisputed that the nation had been for a continuance may "read[] less like a request for a continuance than a plea for its interests in monetary relief. addressing the pollution," id. at 879, and did not discover until the court's july 22 oklahoma, with him on the briefs for defendant - appellee peterson farms, inc.), rejection of the agreement. if the date for commencement of trial had still been the three factors on which courts customarily focus in determining timeliness of a would cause great disruption to the case, because resuscitating previously march 2, 2009, and trial was to be held the following september (the specific date multiple, inconsistent judgments. and . . . if the state loses its claim water and other natural resources located in the irw." id. at 56768. in light of id., vol. 2 at 324 (emphasis added). the nation could never have reasonably only feasible way to compensate the co-trustees and avoid a double recovery or see coal. of ariz./n.m. counties for stable econ. growth v. dep't of interior, and (4) the [movant's] interest is not adequately represented by existing parties." although the majority confusingly states that "we join the other circuits common-law-nuisance compensatory and punitive damages) or were still being however, just over a month later, it denied the nation's motion to intervene as decision, however, had been subsequently reconsidered and reversed by the judge of the various co-trustees," and that it could "make no determination of the ratio time tyson filed its rule 19 motion, the nation could have reasonably believed the litigation had sufficiently matured by november 15, 2007, that the farms, inc.; peterson farms, cercla damages claims would also require additional discovery because the timeliness inquiry measures prejudice caused by the intervenor's delay--not by 14, 2009 scheduling order & integrated br. in supp. at 3, tyson foods, inc., no. with him on the briefs for defendants - appellees, george's, inc. and george's timeliness. therefore, its decision should be reviewed de novo rather than for an general of the nation explaining, "if we are not allowed to intervene in this this trial concludes in october or november of 2009. analyze this filing and act accordingly. in the meantime, the district court had ruled (in granting tyson's motion to dismiss the damages claims . . . . -25- the state and the nation must bring their claims for damages that measure delay from when the movant was on notice that its interests may not court have postponed and delayed other important business and cases interests in the irw, but asked tyson "not to pursue a course of action that would believed its interests were adequately represented by the state when the lawsuit nation's proposed intervenor complaint, asserting the nation's ownership interest kretzinger v. first bank of waynoka, 103 f.3d 943, 946 (10th cir. 1996) poultry, inc.; tyson chicken, and interests in the irw, a damage award to the state either abridges interests, the agreement would be "null and void," id. at 534. plaintiffs - appellees, the nation's interests in the litigation, the district court ruled that the nation had severely prejudice the parties who have been actively proceeding toward long trial can simply be penciled in a mere four months from now as representation "when an applicant for intervention and an existing party have the with the land in northeastern oklahoma, water rights have remained the state and nation argue that these matters would not be the disgorgement of profits from the alleged improper waste disposal. a ninth claim underestimate[d]" the need for additional time if the nation were allowed to of intervention. see clinton, 255 f.3d at 1251. but the point here is not that (d.c. no. 4:05-cv-00329-gkf-pjc) necessary regarding the nation's ownership of resources in the irw; and because start date set for less than three weeks from the date of the nation's motion to motion, restricting the previously scheduled trial to the state's claims for circumstances." sanguine, ltd. v. u.s. dep't of interior, 736 f.2d 1416, 1418 of interior, 100 f.3d 837, 840 (10th cir. 1996), when a district court's decision is eventually denied the request for a preliminary injunction on september 29, 2008, lawsuit, the state will potentially have wasted the significant amount of time and the court had already denied a preliminary injunction and it did not rely on this resources, and the reasonable cost of assessing injury to the resources. id. at 21. in considering the timeliness of the nation's motion to intervene, take into together in one lawsuit. for these reasons, i respectfully dissent. nation, unfettered by issue and claim preclusion, would pursue inc.; simmons foods, inc.; intervene. but given the imminent date for a lengthy trial, the district court could proceed on three claims against tyson for injunctive and monetary relief. the tyson foods, inc.; tyson test. rather, it held that "[t]he defendants have adequately demonstrated that the but these consideration are not exclusive and the trial court should also consider intervene would suggest the contrary. the district court ruled that the state could facilitate discussions to reconcile the poultry litter problem affecting on essentially the same allegations against tyson as those in the state's one million acres straddling the oklahoma-arkansas border. within it are claims); and (4) that the agreement's purported retroactivity was prohibited by fail. 1232 (10th cir. 1997) ("generally, an appellate court will not consider an issue factors establish an abuse of discretion. we disagree. had moved promptly after learning that the state could not adequately represent irw) incurred by the state in responding to tyson's disposal practices, as well as 2 tyson on its rule 19 motion, all of those claims were dismissed. if the nation is previously stated, the nation admits . . . "there's a possibility for (2) the [movant] claims an interest relating to the property or transaction which is denied. see san juan county, utah v. united states, 503 f.3d 1163, 1203 (10th individually or collectively with the other co-trustees may go after and the individual poultry farmers improperly disposed of poultry waste by both no. 09-5134, oklahoma v. tyson foods, et al. ingrid l. moll, motley rice llc, hartford, connecticut, (frederick c. baker, nation could have reasonably believed that the district court would adopt the potentially suffer if the nation is excluded from this case is significantly greater not authorized to enter into such agreements; (3) that oklahoma law prohibited state, with respect to the alleged pollution. the first count was for cercla cost -19- would reverse the district court's decision and allow the nation to intervene so clerk of court this is not a particularly easy issue and there is no perfect resolution delayed too long, that tyson would be severely prejudiced by the lengthy trial would-be intervenor acted when it became aware that its interests would no longer decided those issues, except perhaps as an amicus. 1995) ("[applicants] reasonably believed their employer was representing their foods, inc., no. 05-cv-0329 joe-saj (n.d. okla. june 13, 2005), and as trustee restore, replace, or acquire the equivalent of such natural resources; (b) the when assessing the timeliness of a motion to intervene under rule 24(a)(2), the cooperate in advancing our common interests. defendants['] brief, the motion to intervene . . . is denied. july 22 order that the state was adequately protecting its interests. 2010); see also fed. r. civ. p. 24, 1966 amendment note ("intervention of right rule 19 motion to dismiss for absence of a required party, that the nation became a new round of discovery pertaining to at least the statute of the third factor--prejudice to the movant from denying intervention--also adequately demonstrated that the cherokee nation knew of its tyson's disposal of poultry waste in the illinois river watershed (irw). the majority holds that an applicant under rule 24(a)(2) who is seeking damages 05-cv-329-gkf-pjc (n.d. okla. june 30, 2009) (emphasis added). in my view, the gist of the district court's observations about what would have needed to be monitoring, assessing and evaluating water quality, wildlife and biota in the issued a public statement regarding the motion. it said: 42 u.s.c. 9607, is similar. it alleges that tyson's pollution has resulted in future response costs of the nation." maj. at 2021. in other words, the cherokee nation may bring its claims in a separate lawsuit if it in trial could be accommodated without much of a burden. but the delay of more intervenor's complaint, including a federal common law nuisance "the existence of any unusual circumstances." id. the nation contends that these -18- a. early stages of the litigation more speculative than real. the nation has consistently stated that it would rely to another trustee by a responsible party. if there is a later adequately represented by an existing party, it did not apply the correct test for liability act (cercla) for natural resources within oklahoma. the initial nation is excluded from this lawsuit. during the more than three years that tyson countered that because the nation had sat on its rights until -31- in late 2005, after the filing of the initial complaint, representatives of the nation practically barred by res judicata if the state of oklahoma is before the nation moved to intervene. to be sure, tyson had filed such a motion hamilton, 122 f.3d 1309, 1324 (10th cir.1997). proposed complaint, nothing had happened in the four-plus years since the state -3- rulings on pending motions." maj. at 28. the fact remains that on june 30, 2009, the nation's delay should be measured from that date. the cherokee nation (the nation) appeals the district court's denial of its w.a. drew edmondson, in his we believe that we would have to join the state of oklahoma factor in the timing of the nation's motion to intervene. in my view, tyson state, assuming that intervention by the nation would resuscitate its own damages inc.; cobb-vantress, inc.; in order to accommodate plaintiffs' demands for a september 21 trial its suit. iii. conclusion complaint in intervention; and, as we shall see, the nation has made no showing the nation will not be prejudiced in the sense that its claims we agree that a potential party could not be said to have unduly delayed in intact. however, i have to point out that the cherokee nation has if it were not permitted to join because, among other reasons, it lacked the thus, a movant may intervene as a matter of right if "(1) the [motion] is timely, established by tyson; tyson collects the poultry at maturity for processing and required party cannot be joined). in the alternative, tyson moved for judgment as prejudicing the original parties by a failure to apply sooner."). -24- 1206 (5th cir. 1994) ("a better gauge of promptness is the speed with which the i. background could be barred by res judicata from pursuing damages claims in a later suit and tenth circuit finally, we consider whether unusual circumstances argue for or against tyson sought to delay the trial and even argued that "[a] short continuance of the action, both motions for summary judgment and motions in limine. schedule to begin less than a week from today. as previously stated, on the state was questionable when tyson filed its motion to dismiss in october all future necessary response costs incurred by the [nation]." id. at 628. the delay" . . . in the event this court were to permit intervention. the may as a practical matter impair or impede the movant's ability to -5- the nation's intervention would cause tyson. "the prejudice prong of the the state the nation's right to prosecute any claims relating to those brought by not necessary for the court to resolve the precise nature of each sovereign's "when the applicant appears to have been aware of the litigation but has motion to intervene. the cherokee nation may bring its claims in a separate on september 24, 2009, the state and tyson proceeded to a bench trial on of the state of oklahoma with respect to the first potentially adverse impact, the state decided that and at the hearing, counsel for tyson represented that "[d]ozens of witnesses 24, 1966 amendment note. rather, we have gone so far as to presume adequate randall e. rose, george w. owens, owens law firm, p.c., tulsa, oklahoma, and the six defendants were represented by 18 attorneys from nine firms) would the state brought suit as owner of the streams and rivers of the irw, as september 21, 2010 this case," and had asked tyson "not to assert our interest in the watershed." id., nor would the timing of its intervention cause prejudice to the existing parties its timber sales and planning.") (emphasis added) (quotations omitted); hill v. w. tenth circuit august 2009 (a month before trial) came too late to justify delay in moving to such an approach would result in delay and expense, which okla. 2009). for this point, the district court relied on coeur d'alene tribe v. that the state was representing the nation's interests in recovering its damages."). feeding operations and/or the respective poultry feeding operations under contract believed that the state would be allowed to pursue cercla damages ii. discussion and future injury) and punitive damages under federal common law, the state's protect its interests, unless existing parties adequately represent that publish delaware county, a quarter of whom are cherokee. they are in the irw. the state's sixth and seventh claims sought civil penalties and purportedly effective on june 13, 2005 (the date the complaint was filed), was -27- 5. summary trial court's decision will not be disturbed unless the appellate court has a definite intervene, tyson sought to continue the trial. it is irrelevant that tyson's motion tyson is responsible for these disposal practices and thus the resultant injury to business. i advised them that i would contact your office and offer retribution to punish the tardy would-be-intervenor . . . ." utah ass'n of counties before the scheduling order the state sought a preliminary injunction enjoining asarco inc., 280 f. supp. 2d 1094 (d. idaho 2003) ("coeur d'alene i"). that f.3d at 1103 ("prior to the district court's entry of final judgment it was vince chadick, k.c. dupps tucker, bassett law firm, fayetteville, arkansas; would severely prejudice the parties who have been actively we normally review a district court's ruling on timeliness for an abuse of the district court and barred from re-alleging its claims based upon intervention would not enlarge the scope of the original claims and would entail the state supported the nation's position. it argued that permitting that said, however, we recognize that delay in itself does not make a notice long before its motion. true, in one respect the nation had every reason to ago, and trial is scheduled to begin less than a week from today. as intervention by the nation would require more work by the existing parties. that lawsuits, the continuance that would have been necessary to allow the nation's motion for continuance of trial at 1, tyson foods, inc., no. 05-cv-329-gkf did not seek such damages for the nation, and the nation could not have -29- have removed other obligations from their calendars for the next several months. another sovereign, starting all over, the existence of any unusual motion, and on july 22 it granted the motion in part and denied it in part. the to the granting of the motion to intervene by the cherokee nation," state's intervention." 7c charles a. wright et al., federal practice & procedure 1916, executed by the attorneys general of the nation and oklahoma. it assigned to -17- although tyson raised its rule 19 defense in its answer, it waited over three cannot concur in its application of that test. as the majority correctly holds, aplt. br. at 21. -21- irw." aplt. app., vol. 4 at 62728. "accordingly," said the complaint, the 3, tyson foods, inc., no. 05-cv-329-gkf (pjc) (n.d. okla. june 30, 2009). and (the impact on the state could be similar, but the state clearly thought that the by the failure to apply sooner" (internal quotation marks omitted)); 7c wright et on july 2, 2009, the district court held oral argument on tyson's rule 19 contracts with other farmers to raise poultry until maturity, using methods the state's equitable claims. trial took 52 days and the parties are awaiting final cherokee nation, find itself unable to prosecute its claims against [tyson]. since both a. wright et al., federal practice & procedure 1916 at 53940 (3d ed. 2007) the state, and (2) it was not until july 22, 2009, when the district court ruled on intervene. on this basis alone, the district court could properly find an unjustified finally, in discussing whether any unusual circumstances counsel for or the state suggests. defense counsel, defense witnesses and this farms, inc.) (robert p. redemann, perrine, mcgivern, redemann, reid, berry & before the state of oklahoma or the united states. from the time the cercla, 42 u.s.c. 9607. the first cercla claim sought recovery of costs behalf. the state was doing all that the nation might wish to do in that regard. moreover, proceeding toward trial these past four-plus years. [tyson] ha[s] issue."); see also br. of state of oklahoma at 31 ("because neither sovereign can a matter of law on the ground that the state lacked standing to raise certain claims suggesting that the nation itself could be barred. his response was: the nation's proposed complaint stated three causes of action. all relied that it had been trying to settle the dispute. at some point well before trial a nothing in the record supports that belief), the prayer for recovery of response following in a letter to oklahoma's attorney general: for past and future injury could not have been recovered for the nation in the represent its interests. 1 consequence of any delay in the nation's moving to intervene but simply the than a 120 day delay. it would require the reinsertion of three causes i also cannot sympathize with tyson's protestations of the prejudice that next, while i agree with the majority's newly adopted test for timeliness, i perhaps more significantly, it would trigger the necessity of a new the state responded to the motion on january 8, 2009. the response cal-maine farms, inc.; cal- defendants-appellees (collectively, tyson). the state had sued tyson because of sovereignty. such coordination of priorities is often difficult, potentially schedules of their witnesses. for example, the numerous attorneys (the record those factors. it's also the time, the issue preclusion, res judicata, bringing in years to pursue it. and, because the nation could have reasonably believed its delay that would be necessary if the nation were permitted to intervene, and that i express no view on whether the district court properly resolved tyson's the litigation from the outset. in march 2005, when alerted to the state's nation attaches to its motion a proposed intervenor's complaint with already been filed. the subject of the action, (3) the [movant's] interest may be impaired or impeded, -12- for these reasons, as well as the other reasons set forth in the the water rights of the cherokee nation came into existence long rights discussions, so that tribal and state regulatory structures can that the state could adequately represent its interest in this lawsuit.2 monetary damages from tyson in order to compensate for and repair the damage public interest in denying intervention. we therefore give no weight to this nation's absence." oklahoma v. tyson foods, inc., 258 f.r.d. 472, 480 (n.d. and oklahoma secretary of blakemore, bullock bullock & blakemore pllc, tulsa, oklahoma; m. david and future damages and an injunction against alleged pollution. more than three order that it could not. she also contended that the nation would suffer prejudice went to trial. but the compensatory and punitive damages sought by the nation (continued...) `necessary' under rule 19(a) then it cannot satisfy the test for intervention as of delay by the nation in seeking to intervene. (...continued) cargill, inc. and cargill turkey production, inc.) (john r. elrod, vicki bronson, which outweighs the prejudice that would be caused by its exclusion from this years into the litigation, tyson moved to dismiss the monetary claims on the the language of the statute dictates that a co-trustee acting okla. stat. tit. 2, 2-16, 2-18.1; the oklahoma registered poultry feeding lost services. moreover, even if one assumes that the nation reasonably believed when the district court could well lead to appeals regarding multiple motion to intervene if it had been timely. unfortunately it is not. to be filed promptly when delay could significantly prejudice other parties, even raised it both below and on appeal). we therefore have confined our analysis to ground that the nation was a required party that had not been joined. the state certain pollutants in the irw, thus raising another issue requiring discovery. the nation ever expressed to the state (much less reached an agreement with the cannot reasonably believe that its interests are adequately represented by an damages claims. the state unsuccessfully moved for reconsideration. also, had an interest in injunctive relief against tyson, it could have reasonably lawsuit. ___________________________ only minimal additional discovery. it further contended that the nation's motion 1 prejudice to the applicant we've talked about, it's not just money, intervention itself rather than the timing of the motion to intervene." id. represented by the state. furthermore, because the prejudice the state will the district court ruled that the agreement was invalid and granted tyson's (such as the costs of monitoring and evaluating water quality and biota in the the nation concedes that "the original parties . . . will suffer some dismissed claims would require addressing new, complicated issues, such as the intervene, the nation would have no input into how this court result of allowing intervention. they point out, correctly, that the prejudice to on the day that tyson filed its rule 19 motion, the nation's principal chief applicant's delay in bringing the motion is measured from the time the applicant would no longer be protected adequately by the parties . . . ."); cf. elliott, 407 prejudice to the existing parties, see utah ass'n of cntys v. clinton, 255 f.3d injured resources, the value of lost services resulting from the injury to the representative party in a class action for a member of the class." fed. r. civ. p. amended complaint, filed july 16, 2007, dropped a defendant. the changes from intervention was final), and affirm. the district court did not abuse its discretion it allegedly caused to the irw. (pjc) (n.d. okla. sept. 3, 2009); and on september 10 it filed a response in response costs because the state would be doing all the responding (although cherokee nation, like the state of oklahoma, has to protect the water might very well face the real issues of res judicata or issue round of discovery pertaining to at least the statute of limitations money it spent developing these complex damages claims. in my view, the loss the injunctive relief sought is identical to what the state sought on its claims that would not prejudice any party greatly undermines its claim only two months later august 11, the state responded with several documents indicating that its claims allowing the application of poultry waste generated at its respective poultry trial date would not prejudice any party." def's mot. for modification of may resources for the state of necessary response costs," and sought a declaratory judgment that tyson was nation has not explained why it could not have moved to intervene at the same raised for the first time on appeal."). in any event, the possibility of prejudice is because it had not demonstrated that it had an ownership or trusteeship interest chief wrote to the oklahoma attorney general about "the proposed lawsuit." damages through agreement or in subsequent litigation. tyson's motion reads less like a request for continuance than a plea for rulings on complaint stated nine causes of action. two causes of action were under issues, including the issue of whether the cherokee nation has any of september 21, 2009, being set in a later order on april 24, 2009). also, a day trustee for natural response and restoration costs under cercla, the state's complaint did not seek hill, rhodes, hieronymus, jones, tucker & gable, pllc, tulsa, oklahoma; preclusion. depending upon what happens to the state's case in this -2- interests were not being adequately represented by a party to the litigation. in timeliness is whether the proposed intervenor moved to intervene as soon as it monetary damage claims for injury to the [nation's] substantial interests in lands, determining timeliness is when the intervenor became aware that its interest or percentage of actual management and control exercised by the [nation] in the 4. unusual circumstances nation's proposed common-law nuisance claim, discovery would have been to the nation's historical claims of ownership over resources within the irw and district court denied the motion as untimely. although the nation argued that it u.s. forest service, 573 f.3d 992, 994 (10th cir. 2009) (order denying the district court denied the nation's motion. it said: that we support the unconditional dismissal of this lawsuit. the and we affirmed. see att'y gen. of okla. v. tyson foods, inc., 565 f.3d 769 elliott indus. ltd. p'ship v. bp am. prod. co., 407 f.3d 1091, 1103 (10th cir. i've had the opportunity to meet with a number of poultry growers in reasonably thought that the state was representing its interests in those damages. issue preclusion does not run against a nonparty, so that's just a the original complaint are irrelevant to the issues on appeal. would not necessarily be bound by the state's assessment of the public interest, acknowledged the nation's "substantial interests in lands, water and other natural law and fact by virtue of the cherokee nation's separate claims and interests." resources; and (c) the reasonable cost of assessing injury to the natural resources damages. even if the nation believed that it would not need to recover any future contains high levels of certain chemicals and microbes that are harmful to the held a hearing on the nation's motion. the nation's attorney general have to do all of these things that have already been done in this 3. prejudice to the movant nation's interests, and nothing that occurred before the nation moved to issue, its participation as an amicus would seem perfectly adequate. 19(a)(1). and because the nation was a sovereign entity that could not be joined against intervention. for example, the court could expect the motion to intervene in the following comment: claims, moved to continue the trial for 120 days "in order to remove any obstacles not permitted to intervene, the state and nation will have to pursue the hundreds represent the nation's interests. either the nation's interests were never taylor, p.l.l.c., tulsa, oklahoma; robert e. sanders, young williams, p.a., maine farms, inc. and cal-maine foods, inc.) (john h. tucker, theresa noble suggests that the nation could have reasonably believed that those interests would al., supra 1916, at 54148 ("the most important consideration in deciding we affirm the denial of the nation's motion to intervene. investigated, in the case. the nation's opening brief on appeal argues prejudice, but only tersely. as for the adverse impact on the district court and on litigants in other b. the timeliness of the nation's motion right under rule 24(a)(2)." oneida indian nation, 605 f.3d at 162 (alterations less any amount that has already been paid as a result of a settlement that effort proved unsuccessful. timothy t. jones, tyson foods, inc., springdale, arkansas; michael r. bond, party must realize that it needs to plan for the possibility that negotiations will of subject matter jurisdiction."). recovery under 42 u.s.c. 9607. it alleged that as a result of tyson's improper although tyson's answer to the original complaint had raised the defense b. motion to dismiss wishes. this court--would have been pleased to grant the nation's intention to file suit, chad smith, principal chief of the nation, wrote the account whether the nation could have reasonably believed its interests were such damages for the nation. perhaps the nation could have believed that the the majority further notes that because the trial date was less than three of course, even if a party is deemed "necessary" under rule 19(a), it will judgment. numerous pending motions (for summary judgment and the exclusion of expert intervention."); or (2) the timing of the applicant's intervention will cause undue operations act, see okla. stat. tit. 2, 10-9.7, 10.9-11; and certain provisions of interests in lands, water and other natural resources of the [irw]," id., it also -4- the office of environment (10th cir. 2009). -9- be joined against its will, both would again need concurrently to waive their least partly responsible for this belated delay and the attendant added cost. state's suit would protect this interest of the nation because success in the state's would as a practical matter impair or impede any [nation] interest." id., vol. 3 at the district court explained the nature of the prejudice that the existing longwell, philip d. hixon, mcdaniel hixon longwell & acord, pllc, tulsa, although not an exhaustive list of the circumstances that render a motion to abney, neal, turpen, orbison & lewis, tulsa, oklahoma, with her on the briefs), the lawsuit. much of the irw is within the boundaries of the cherokee nation whether a motion for intervention is untimely is whether the delay in moving for date with the expectation that such matters can be attended to once we review a district court's ruling on timeliness for an abuse of discretion. r. civ. p. 19, and, after observing that joinder was not feasible, dismissed each of environment and human health, these disposal practices allegedly result in injury jay t. jorgensen, sidley austin llp, washington, d.c., (virginia a. seitz, moving to intervene if its interests had been adequately represented until shortly -26- 322 (7th cir. 1995) ("[w]e do not expect a party to petition for intervention in ("[w]hen a lower court's factual findings are premised on improper legal lawsuit. accordingly, i respectfully dissent from the majority's opinion which intervention will prejudice the existing parties to the case."). we now turn to -22- 415. and after noting that the nation "has not indicated that it intends to sue according to them, (1) it was only on october 31, 2008, when tyson filed its the majority also holds that even if the nation could have reasonably with and impair[ed]" the state's and the public's beneficial use of the irw, and conner & winters, l.l.p., fayetteville, arkansas, with him on the briefs for purpose of the basic requirement that the application to intervene be timely is to -5- nation's motion to intervene was untimely. and with respect to the state's its interests were adequately represented because it could have reasonably are not being properly represented . . . ."); sierra club v. espy, 18 f.3d 1202, motion to intervene in a dispute between the state of oklahoma (the state) and "injury to, destruction of, and loss of natural resources in the irw, . . . for which and for the benefit of the public," complaint at 3, state of oklahoma v. tyson accordingly, for much, perhaps most, of what the nation sought in its weighed in favor of denial. as the district court said: "the nation will not be [t]he calendars of defense counsel, defense witnesses and perhaps complaint never sought such recovery for the nation, and nothing in the record 2008. indeed, the nation was certainly aware of the risk to its interests in early the majority adopts a timeliness test that measures the applicant's delay from the to irw resources potentially conflicted with those of the nation. will not be impaired by the denial of its motion to intervene. the state and the nation in proportion to the actual management and control exercised intervene. aplt. app., vol. 4 at 667. it asserted that "extensive discovery and idaho 2005) ("coeur d'alene ii") ("the court revises its trusteeship ruling . . ."). to the cercla damages claims, the majority concludes that the nation could cir. 2007) (plurality opinion). therefore, we join the other circuits that measure "necessary" party, tyson's own delay in bringing its rule 19 motion was a causal -33- id. at 926. and, as clearly emerged later in the lawsuit, the nation claims that various federal the nation's purported transfer of rights to prosecute the trespass and nuisance find that the nation had unduly delayed seeking to intervene because from the represented by an existing party. the district court, however, did not apply this on timely motion, the court must permit anyone to intervene who: defendants - appellees, money to develop its damages claims. when the district court ruled in favor of the state in its lawsuit against tyson. although the agreement asserted that "it is in seeking funds from tyson under cercla to remedy the effects of prior devoted little attention to possible money claims by the nation. it said: "[tyson] on the state's efforts to prove the claims against tyson. why, then, would the was timely because the nation had reasonably believed until the district court's elec. co., 672 f.2d 381, 386 (4th cir. 1982) ("[t]he critical issue with respect to substantial delay before the case could go to trial. cf. id. (intervention proper under rule 19) that damages under cercla would need to be awarded to the capacity as attorney general lawsuit. rather, it acted quite prudently throughout and only sought to intervene -2- to this issue. this case was filed over four years and three months and the nation with respect to claims to natural resources within the irw. on state's suit. the nation has not argued any theory under which the state could aplt. app., vol. 5 at 877. later, the attorney general was even more discretion, see, e.g., coal. of ariz./n.m. cntys. for stable econ. growth v. dep't the first reference to res judicata by the nation's attorney general came tyson would incur by having to rearrange its attorneys' and witnesses' schedules charged with a delay of almost a year. the nation was on notice that its reliance united states court of appeals we can sum up as follows regarding the three types of interests that the thought that the state was representing the nation's interests in recovering its who issued it. see united states v. asarco inc., 471 f. supp. 2d 1063, 1068 (d. moved to tulsa [and] set up war rooms . . . ." aplt. app., vol. 5 at 917. tyson's request for a continuance and its claim on june 30 that a trial delay than the prejudice tyson will suffer if the nation is permitted to intervene, i irw, in which both the state and the nation claim interests, covers approximately have cleared their schedule and some of them are here, ready to go. we have to and loss of natural resources, including the cost of restoring or replacing the interest. september 2009, its motion was untimely. it also contended that intervention -15- sought damages and injunctive relief for trespass on the state's property interests permitting the nation to intervene. two such circumstances here might be that outset of the litigation it had no reason to believe that the state would represent suit would eliminate any need for the nation to incur such future costs; but resources to prosecute the case without the state's assistance. she conceded that be adequately protected by the state in its lawsuit. prejudiced in the sense that its claims will not be impaired by the denial of its loss of the natural resources" and seeks damages, including "(a) the cost to the court did not rely on this prejudice in denying intervention (although tyson tyson and the state, joined by the nation, engaged in settlement discussions. but though the inadequacy of representation is not free from doubt. quality interests within our jurisdiction. . . . we will take time to -7- for the northern district of oklahoma court first concluded that the agreement was invalid. it reasoned (1) that the the nation's opening and reply briefs submitted to the district court in support of claims regarding the irw, nothing in the record indicates that before 2009 the before tacha, ebel, and hartz, circuit judges. join the state [] who also has immunity. whether or not politically they can do it circumstances. complete red herring. the district court could properly decide that the prejudice to tyson would -8- abuse of discretion. the consequent resuscitation of numerous motions pertaining to those filed its complaint that would indicate that the state could no longer adequately more than a two-month delay would be necessary. for modification of may 14, 2009 scheduling order & integrated br. in supp. at stated that should the court find it necessary to determine the nature of those be protected by the original parties."); hill v. w. elec. co., 672 f.2d 381, 386 [tyson]," it added that in any event, "cercla precludes double recovery of will need to consider that clarity (or lack of it) in weighing the factors for and by a party already in the case. see reich v. abc/york-estes corp., 64 f.3d 316, aware of the possibility that its interests would not be adequately represented by favorable result in the trial of equitable issues? (we further note that the nation collectively against [tyson], [1] the nation's claims may well be shows that at the hearing on the motion to intervene, the state had 11 attorneys (10th cir. 1984). we have recognized three factors as particularly important: appellees tyson foods, inc., tyson, poultry, inc., tyson chicken, inc., and adequately represented by the state (the interest in injunctive relief). in relevant to the question before us are the interests pursued in its proposed discussion of the prejudice tyson would suffer if the nation were permitted to existing party unless an existing party explicitly seeks damages on behalf of the whose adequacy comes into question under [rule 24(a)(2)] is not confined to never sought to intervene for just the trial on equitable issues.) with it to any land within the irw." aplee. supp. app. at 130. the district court "[(1)] the length of time since the [movant] knew of [its] interests in the case; -14- relying in part on the documents received, tyson filed on october 31, and assessment costs under cercla and both compensatory damages (for past they alleged that tyson's disposal practices unreasonably "inva[ded,] interfere[d] unduly seeking to intervene, courts generally have been reluctant to allow for plaintiff - appellee. jackson, mississippi, with him on the briefs for defendants - appellees cal- have adequately represented the nation's interest in obtaining monetary relief on existing party.1 briefing will be required to adjudicate the numerous additional, complex issues of is here seen to be a kind of counterpart to rule 19(a) . . . ."). "if a party is not the movant's interests were adequately represented by a party--would have been we could bring a new cercla lawsuit, your honor. the problem, state of oklahoma, ex rel. therefore could not join the nation in such a suit. in our view this concern was discomfort if intervention is granted." aplt. br. at 20. and it has not disputed when "no scheduling order ha[d] been issued, no trial date set, and no cut-off date lawsuit if it wishes." aplt. app., vol. 5 at 928. three causes of action. the filing of an intervenor's complaint, advantages of being able to pursue its damages claims at the trial outweighed the we have jurisdiction under 28 u.s.c. 1291, see wildearth guardians v. interests.") (emphasis added); sierra club v. espy, 18 f.3d 1202, 1206 (5th cir. reasonable and necessary costs to assess and evaluate this injury, destruction and reinsertion of three causes of action that were previously dismissed, equivalent" of the injured or lost resources; but the state's suit could not have limine. perhaps more significantly, it would trigger the necessity of cherokee nation, while it may not be legally bound as a party, may pollution (say, money for decontaminating an area), the state may have been instances in which the potential intervenor has no reason to believe its interests arguably too late for the nation to intervene. not be permitted to intervene under rule 24(a)(2) if its motion is untimely. put the validity of the cherokee nation's claims" to parts of the irw before the on september 15, six days before the scheduled trial date, the district court continue to incur, necessary response costs . . . includ[ing] . . . costs of in which the nation purportedly assigned the state its interests in the litigation. damage claims on its own. would incur. in the second cercla claim the state--acting as "cercla raised in opposing the delay that would result from the nation's intervention. testimony) that would impact trial preparation. the thrust of the motion was that the nation and the state argue, however, that the timeliness of the nation's pursue its injunctive relief and has held a trial on that matter. the nation had no retribution to punish the tardy would-be intervenor, but rather a guard against intervene, the parties had necessarily already arranged their schedules and the marketing. these poultry-growing operations generate hundreds of thousands of id. at 56465. the court also ruled that the state lacked standing "to prosecute movant - appellant. damages or, to the extent the cherokee nation is not barred by issue could in no way affect the liability of the responsible party or parties. the nation admits . . . "there's a possibility for delay" . . . in the that motion, that the nation definitively knew that the state could not in fact natural resources of the irw since before oklahoma statehood. yet despite these particular, they contend that the nation reasonably believed that the state was extent of the nation's ownership over the irw and whether any statute of see reich v. abc/york-estes corp., 64 f.3d 316, 322 (7th cir. the rule is simply not construed so narrowly. indeed, "[t]he representation cobb-vantress, inc.) (gary v. weeks, woodson w. bassett iii, james m. graves, aplt. app., vol. 4 at 688. lawsuit and also, your honor, depending on what happens here, we to be investigated. further, tyson indicated that it would defend against the oklahoma law and, in any event, could not cure any jurisdictional defects that and likely a new round of motions in limine, in addition to those 41 when it could no longer reasonably believe that its interests were adequately the nation would not be prejudiced by a denial of intervention. with her on the briefs), cherokee nation, tahlequah, oklahoma, for movant - interest in this case from the outset of the litigation but chose not to new round of motions in limine, in addition to those 41 that have incurring future costs to remedy the alleged pollution, the nation can still be delaying the trial, pointing out that tyson had requested a continuance not long sought damages (including punitive damages) and an injunction requiring tyson majority's application of this standard correctly measures delay from when the abbreviated: on notice that the state might not adequately represent its interests. it had such to intervene to allow it to be a party at that trial. other parties must be prejudice caused by the movant's delay, not by the mere fact intervention could have wreaked havoc on the court's calendar. again, however, this lawsuit," had "never wished to have our ownership in the [irw] an issue in if the nation is excluded from this action. to begin, the majority applies the incorrect standard of review. although any benefit from a prompt injunction would be outweighed by the desirability of the nation was, however, engaged early on with both the state and tyson. injunctive and other equitable relief. its ruling, the court dismissed as moot several outstanding motions regarding the this claim. request for a 120-day continuance, tyson argued that the request "grossly pursuant to your honor's finding. they have immunity. we would injunctive relief for violations of the oklahoma environmental quality code, see subject of the action, and is so situated that disposing of the action individually, and that the state and nation could then jointly apportion those the irw. id. (citation omitted). this letter reflected the nation's obvious interest in the subject matter of see id. (timeliness requirement is a "guard against prejudicing the original parties cannot now complain about the timing of the nation's motion to intervene when have been intended) to refer to the possibility that the nation itself would be (4th cir. 1982) ("[c]ritical issue with respect to timeliness is whether the practically, the cherokee nation may have no adequate nation exchanged with the federal government all its land in the east 2


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