Reversing a district court judge's ruling, the Ninth U.S. Circuit Court of Appeals has concluded that a Native American tribe is not an "indispensable party" in an environmental group's endangered species lawsuit against the federal government.
The case involved the Southwest Center for Biological Diversity's lawsuit challenging the federal government's plan to use more water storage capacity behind Roosevelt Dam in Arizona. The group claimed that the government had not done adequate analysis of the impact on the Southwestern Willow Flycatcher, an endangered species.
The Southwest sued the federal government and the Salt River Project and Power District, a federal water project, to force more analysis of the environmental impact of the newly completed Additional Active Conservation Capacity behind the dam. Several Arizona cities, including Phoenix, Chandler, Scottsdale, and Mesa, successfully intervened in the lawsuit because they have helped pay for the additional storage capacity. The Southwest Center did not, however, also sue the Salt River Pima-Maricopa Indian Community. Under a 1988 settlement agreement that permitted construction of the additional water storage capacity, Pima-Maricopa is considered a "non-party with rights". Seeking to intervene, the tribe made a motion to dismiss the suit under Federal Rule of Civil Procedure 19.
U.S. District Court Judge Paul G. Rosenblatt in Arizona ruled that the tribe was a "necessary and indispensable party" to the lawsuit and the Southwest Center appealed. In making the ruling, Rosenblatt acknowledged that the federal government has the same interest in the case as the tribe - that is, the interest of seeking that the additional water storage capacity is activated as quickly as possible. Rosenblatt also acknowledged that the federal government could adequately represent the tribe's interest but was unlikely to do so because the federal government opposed the tribe's own motion to dismiss the suit.
In a per curiam decision, the Ninth Circuit overruled Rosenblatt. "The district court's approach is circular," the appellate court wrote. "A non-party is 'necessary' even though its interests are adequately represented on the underlying merits by an existing party, simply because that existing party has correctly concluded that it is an adequate representative of the non-party, and therefore opposes the non-party's motion to dismiss. The district court's approach would preclude the United States from opposing frivolous motions to dismiss out of fear that its opposition would render it an inadequate representative."
The court also took issue with Judge Rosenblatt's assertion that the federal government may have potentially inconsistent responsibilities under its trust obligations to the tribe and applicable environmental laws. "Neither the district court nor any of the parties has explained how such a conflict might actually arise in the context of Southwest's suit," the Ninth Circuit wrote.
In addition, the Ninth Circuit concluded that the cities would help to adequately ensure the tribe's interests are represented. "Although they assert they do not adequately represent the Community, they offer nothing to show that their interests in the AACC or the arguments they would make differ at all from those of the Community," the court said.
Judge Rosenblatt also concluded that the tribe is a necessary party because, if it were not included as a party, litigation would ensue under the 1988 settlement agreement to determine what the tribe's rights in this situation actually were. But the court concluded that "ambiguity in the settlement agreement could result in litigation even if Southwest's suit were dsmissed."
Southwest Center for Biological Diversity v. Babbitt, No. 98-15038, 98 Daily Journal D.A.R. 8542 (filed June 9, 1998).
For Southwest Center: Geoff Hickcox, Kenna & Hickcox, Durango, Colorado.
For U.S. Government: M. Alice Thurston, U.S. Department of Justice, Washington, D.C.
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