us supreme court: orig128 112601

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No. 128, Original

IN THE SUPREME C OURT OF THE U NITED STATES

O CTOBER TERM , 2001

STATE OF ALASKA ,

Plaintiff ,

v.

U NITED STATES OF A MERICA ,

Defendant.

O N M OTION FOR LEAVE TO I NTERVENE

AND F ILE A NSWER

R EPORT OF THE S PECIAL M ASTER ON THE M OTION TO

INTERVENE BY F RANKLIN H. J AMES , THE SHAKAN K WAAN

T HLING -G IT N ATION , J OSEPH K. S AMUEL , AND THE T AANTA

K WAAN T HLING -G IT N ATION

G REGORY E. M AGGS

Special Master

Washington, D.C.

November 2001



Table of Contents

I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. Subject Matter of No. 128, Original . . . . . . . . . . . . . . . . . . . 1

III. The Propo sed Intervenors . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

A. Iden tity an d Inte rest . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

B. The Peratrovich Litigation . . . . . . . . . . . . . . . . . . . . . . 6

IV. Parens Patriae Principles . . . . . . . . . . . . . . . . . . . . . . . . . 11

V. Exceptional Circumstances . . . . . . . . . . . . . . . . . . . . . . . . . 13

A. Compelling Interest . . . . . . . . . . . . . . . . . . . . . . . . . . 13

B. Indian Tribes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

C. Policy Arguments . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

1. Potenti al N um ber of Part icipant s . . . . . . . . . . . . . . . 1 9

2 . B ur den I mp ose d o n t he L iti ga tio n . . . . . . . . . . . . . . 2 1

3. Fa irness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

VI . F ederal R ul e of Ci vi l P rocedur e 24 . . . . . . . . . . . . . . . . . . 24

VII. Assessment of Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

VIII. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

i



I. Introduction

This report concerns a motion by two individuals and two

communi ties of native Ala skan s to in tervene and fil e an an swer in No.

128, Original, State of Alaska v. United States . The report

recommends that the Supreme Court deny the motion on the bas is of

parens patriae principles.

II. Subject Matter of No. 128 , Original

This or iginal action began on June 12, 2000 , when the Su preme

Court granted the State of Alaska leave to file a bill of complaint

against the United States. See Alaska v. Uni ted States , 120 S. Ct.

2681 (200 0). Alaska’s comp laint asks the Court to quiet t itle to vast

expanses of marine submerged land pursuant to the Quiet Title Act of

1972, 28 U .S.C . § 2409a. The sub merged land is located in

southeastern Alaska’s Alexander Archipe lago. This Archipe lago

includes more than 1000 islan ds, and covers an area nearly 600 mil es

long and 100 miles wide. The submer ged lan d a t issue l ies off the

mainland coast of Alaska an d off the shores of the n umerous island s

in the Archipelago. The p aper s filed in the present ac tion do no t

specify why Alaska values the underwater lands in controversy. 1

Alaska claim s that t itle to t he sub merged land s involved in this case

passed from the United States to Alaska when Alaska became a statein 1959. Although this action has not progressed beyond its early

stages, Alaska already has outlined th e legal argument that it int ends

1In past litigation, Alaska and the United States have disputed the

ownersh ip of other mar ine submerged lands for various reasons. One case

involved construction of an obstacle to navigation. See United States v.

Alaska , 503 U.S. 569 (199 2) (No. 118, Orig.). In ot her cases, the submerged

lands have contained oil or gas. See United States v. Alaska , 530 U.S. 1021(2000) (No. 84, Orig.); United S tates v. Alaska , 422 U.S. 184 (1975).

1



2

to present in support of its position. See Brief in Suppo rt of Motion

for Leave to File a Compla int, Alaska v. United States , No . 128 Orig.

(U.S. Nov. 24, 1999). The state has indicated that it will rely

principally on the “Equal Fo oting” doct rine and t he Submerged Lan ds

Act of 1953, 43 U.S.C. §§ 1301-1315. See Brief in Support of

Motion for Leave to File a Complaint , supra , at 4.

The Eq ual Foot ing doctrine says th at new states enter ing the Union

have the same sovereign powers and jurisdiction as the original

thirteen states. See Coyle v. Smith , 221 U.S. 559, 573 (19 11). Under

this doctrine, subject to certain limitations, a new state generallyacquires title to the beds of inland navigable waters. See Utah Div.

of State Lands v. United States , 482 U.S. 193, 197 (1987). The

Submerged Lands Act of 1953 declares that states generally have title

to all lands beneath inland navigable waters and offshore marine

waters within their “boundaries.” See 43 U.S .C. § 1311(a)(1). Under

the Act, a state’s bounda ries may extend thr ee geographic miles from

the coast line. See id. § 1301(b). The Act , however, contains an

exception for lands expressly retained by the United States when a

state enters the Un ion. See id. § 1313(a).

Alaska’s complaint, as amended on January 8, 2001, states four

claims. See Amended Complaint to Quiet Title, Alaska v. Unit ed

States , No. 128 Ori g. (U. S. Dec. 14, 2000); Alaska v. United States ,

121 S. Ct . 753 (20 01) (granting leave to amend complaint). Counts

I and II b oth claim that the submerged lan ds in the Alexander

Arch ipe lago lie beneat h inland waters and t herefore pas sed to the state

under the Eq ual Footing doctrine. See Amended Complaint to Quiet

Title, supra , ¶¶ 4-41. Count I alle ges that the waters of the

Archipelago historically have been considered inland waters. See id.

¶ 7. Count II asserts that the wate rs al so q ualify as inland waters

because they lie within several juridical bays defined by the

Archipelago’s geographic features. See id. ¶ 25.



3

Cou nt III concerns an area within t he Alexa nder Archip elago

designated as the Tongass National Forest. Subject to certain

exceptions, the United States retained title to the Tongass National

Forest when Alaska became a state. See Act of July 7, 1958, Pub . L.

No. 85-508 § 5, 72 Stat. 339, 340 [ hereinafter Alaska Statehood

Act]. Alask a, however, claims title to “all lands between the mean

high and low tide and three miles seaward from the coast line inside

the boundaries of the Tongass National Forest.” Amended Comp laint

to Quiet Title, supra , ¶ 43.

Count IV concerns another area within the Alexan der Archipe lagoformerly designated as the Glacier B ay National Monum ent and now

called the Glacier Bay Natio nal Park and Preserve. Again, subject to

certain excep tions the United States retained title to the Gl acier Bay

National Monument when Alaska became a state. See Alaska

Statehood Act, supra , § 5. Alaska, however, claims title to “a ll t he

lands underlying m arine waters within the boundaries of Glacier Bay

National Monument” under the Equal Footing doctrine and the

Subme rged Lan ds Act. Amend ed Compl aint to Quiet Title, supra, ¶

61 .

The United States has not undertaken to outline the arguments that

it intends to present in defense. Wi th Alaska, however, the United

States has iden tified in some d etail the issues that it bel ieves this

litigation will present. See Joint List of Subsidiary Issues, Alaska v.

United States , No. 128 Orig. (U.S. Apr. 16, 2001); Brief for the

United S tates On Motion for Leave to File a Bill of Complaint at (I),

Alaska v. United States , No. 128 Orig. (U.S. Apr. 12, 2000).

Ultimately, the Court most likely will have to decide whether the

waters of Alexander Archipelago truly are inland waters for the

pur pose of the Equal Footing doctrine and the extent to w hic h the

United St ates retained marine submerged lands when it reserved t he

Tongass National Forest an d the Glacier Bay National M onumen t.



4

III. The Proposed Intervenors

On February 26, 2001, Franklin H. James, the Shakan Kwaan

Thl ing-Git N ation, Joseph K. Samuel, and t he Taa nta Kwaan Thling-

Git N ation (the “Propo sed Int ervenors”) filed a motion to intervene as

defendants and sought leave to file an answer to Alaska's complaint.

The Stat e of Alaska and the United States each filed an opposition to

th e mo tion, and the Proposed Intervenors filed a reply. The Co ur t

referred this motion to th e Special Master. See Alaska v. United

States , 121 S. Ct. 1731 (2001) . The Special Master r equested and

received supplemental briefs, and heard oral argument.

A. Identity and InterestAccor ding to th e P ropos ed I ntervenors, Fr anklin H. James is the

First Chairholder and Tribal Spokesman for the Shakan Kwaan

Thling-Git Nation, which is a band of Thling-Git natives whose

ancestral ho me is in Southeast Alaska. Joseph K. Samuel is the First

Chairholder and Tribal Spokesman for the Taanta Kwaan Thling-Git

Nation, which is a nothe r band of Thling-Git natives whose ancestral

home also is in Southeast Alaska. See Brief in Sup port of Moti on for

Leave to Intervene and File Answer at 1-2, Alaska v. Uni ted States , No. 128 Orig. (U.S. Feb. 20, 200 1).

The Shakan Kwaan and Taanta Kwaan Nations are described by

the Proposed Intervenors as “both a ‘community’ and an ‘extended

family.’” Id. All of their members are native Alaskans. The two

Nations, however, are not recognized as Indian Tribes having a

government-to-government relationship with the United States. See

65 Fed . Reg. 13,298 (2000) (listing federally reco gnized tribes).

The answer that the Proposed Intervenors seek leave to file in this

case denies that Alaska has title to the submerged land located within

the Tongass National Forest. See Proposed Answer of Intervention

¶ 27, Alaska v. Uni ted States , No. 128 Orig. (U.S. Feb. 20, 2001).

The Proposed Intervenors do not claim that they own this land.



5

Instead, the Pro posed Intervenors seek to in tervene in support of the

United State s’s claim to o wnership of the property.

The Proposed Intervenors care whether t itle to submerged la nds in

the Tongass National Forest belongs to Alaska or the United States

because the answer may affect their ability to harvest herring roe on

kelp. 2 They allege that members of the Shakan Kwaan and Taanta

Kwaan Thling-Git Nations have harvested herring roe on kelp in the

waters of Sout heastern Alaska since time immem orial. This harvesting

stopp ed in 1968 when Alaska proh ibited customa ry tr ade in herring

roe. The P roposed Intervenors believe that if the United States hastitl e to the land they could resum e th e harve stin g pu rsu ant to T itle VIII

of the Alaska N ational Interest Lands Conse rvation Act (A NILCA), 16

U.S.C. § 3111 et seq.

Titl e VIII o f ANILCA provides t hat “th e taking on pub lic lands [of

the Uni ted Stat es] of fish and wildlife for nonwas teful subsistence uses

shall be accorded priority over the taking on such lands of fish and

wildlife for other pu rposes.” 16 U.S.C. § 3114. The statute defines

“subsistence uses” to i nclude “t he customary and tr adition al uses by

rural A laska residents o f wild, renewable resources for direct personal

or family consumption, as food, shelter, fuel, clothing, tools, or transportation; . . . for barter or sharing for personal or family

consumption ; and for customary trade.” Id. at § 3113. The Proposed

Intervenors believe that their harvesting of herring roe would satisfy

each of these requirements.

2Herring is an imp ortant food fish found in th e waters off Alaska’s c oast

and elsewhere. Roe is the na me given for a mass of fish eggs. Kelp is an

underw ater plant. Herring roe attached to kelp traditionally has been

harvested for human consumption.



7

Kwaan commenced the Peratrovich litigation by suing the United

States in the United States District Court for the District of Alaska. 4

The comp laint asserts that the Federal Subsistence Board violated its

duty to a ct on th e merits of their application. See id. ¶ 40.

Th e Peratrovich litigation and this original action have an

important issue in common, namely, whether the United States or

Alaska has title to the marine submerged lands within the area

designated as the Tongass National Fo rest. 5 The Proposed Intervenors

argue that, i n Peratrovich , the United States “has previously not taken

a str ong position in re gard to t his issue.” Brief in Support of Motionfor Leave to Intervene and File Answer at 5, Alaska v. Uni ted States ,

No. 12 8 Orig. (U.S. Feb. 20, 2 001). Accordingly, they assert that the

United States in this original action “cannot ensure adequate

representation sufficient to guarantee the Proposed Intervenors the

level of advocacy their members demand.” Id.

To support t his cont ention, the Proposed Intervenors have focused

on the Peratrovich plain tiffs’ requ est for a preliminary injun ction. In

their complaint, the plaintiffs asked the di strict court to order that t he

United States immediately issue the roe harvesting permits that the

4The named plaintiffs in the Peratrovich litigation are the same as the

Proposed Intervenors, except that the complaint names Lincoln Peratrovich

rather than Franklin James as the Spokesman for the Shakan Kwa an.

5Under Alaska state law, ownership of submerged lands does not give

rise to a claim of title to the waters in the water column above the land. See

Alaska Public Easeme nt Defense Fund v. Andrus , 435 F. Supp. 664, 677 (D.

Alaska 1977) . The Federa l government, however, has determined by

regulation to treat the na vigable waters above federal lands as “ public lands”

for purposes of ANILCA. See 57 Fed. R eg. 22,942 (1 992). Thus th e

determination of t itle to th e sub merge d lands in quest ion will likely

determine the existen ce of federal su bsist enc e harvesting ri ghts in the water

column above the land.



8

pl aintiffs had sought fr om the Fed eral Subsistence B oard. See

Compl aint for Injunctive and Declaratory R elief, supra , a t 23 . The

United States o pposed the gran ting of any preliminar y injun ct ion.

See United States’ Response to Motion for Preliminary Injunction,

Peratrovich v. United States, No. A92-734 Ci vil, (D. Alaska De c. 24,

1992).

The United State s argued against granting the injunction in part

beca use title to the marine sub merged lan ds with in th e Ton gass

National Forest “Has Not Been Shown to Have Been Res erved by t he

United States.” Id. at 20. The United States t ook the position th at itwould have title to the submerged lands only i f it had affirmatively

reserved them when Alaska became a state. See id. at 20-22 (citing

Utah Div. of Sta te Lands v. Uni ted States , 482 U.S. 193 (1987)).

The United St ates then asserted the inadequacy of t hree legal sources

that the plaintiffs had relied upon to demonstrate that the United

States had reserved title to the Tongass National Forest.

The first source cited by the plaintiffs was Section 24 of the Act of

March 21, 1891, ch. 561, 26 Stat. 1095, 1103, which authorized the

President to establish reservations of land like the Tongass National

Forest. With respect to this source, the United S tates argued: “There

is no ind icat ion i n th e legislat ive language of the n ecessary affirmative

intent by Congress that any action by the President under that statute

was ‘affirmatively intended to defeat’ any future state's title to

submerged lands.” Id. at 22.

The second source cited by the plaintiffs was a collection of

proclamations by President Roosevelt creating the Tongass forest

reserve. With respect to this source, the United States argued: “While

the President clearly intend ed to creat e the forest reserve, t here is no

sho wing in those proclamation s that these reserves were inten ded to

defeat the title of the future state of Alaska to submerged lands at

issue.” Id .



10

lands) with in th e exterior boun daries of the Tongass National Fore st

has be en, and continues to be, in the United States.” First Amended

Compl aint for Injunctive and Declaratory Relief at 15, Peratrovich v.

United States , No. A92-734 Civil (D. Alaska Oct. 29, 1996). The

United State s answered: “The allegations of paragraph 16 of the

Compl aint const itute conclusions of law and ar e not factual

alle gations to which a response is required.” Answer to Amended

Compl aint at 9, Peratrovich v. Un ited States , No. A92-7 34 Civil (D.

Alaska, Dec. 16, 19 96).

Th e Peratrovich case has not reached a co nclu sion. After A laskafiled the present original action against the United States, the district

court stayed the litigation. The district court explained that “it would

not be a good use of resources for this court to undertake to resolve an

issue which will be resolved by t he United States Supreme Court in a

fashion which wil l be cont rolli ng for purp oses of this and other cases.”

Order Status Co nference, Peratrovich v. Uni ted Sta tes, No. A92-734

Civil (D. Alaska Aug. 18, 2000).

The United States, strictly speaking, is not making contrary

arguments in this case and Peratrovich . In Peratrovich , the United

States argued that the plaintiffs had no t shown that the United States

had ti tle to the marine submerged lands in the Tongass National Forest

area. The United State s, howe ver, never act ually admitted that Ala ska

has title to the submerged lan ds.

On th e other hand, with out prejud ging this issue in any way, the

Special Master notes that the United St ates may find it awkward to

contradict some of wh at it conte nded in Peratrovich . For example,

as de scribed above, the United Stat es said that the Act of March 21 ,

1891, the Alaska Statehood Act, and President Roosevelt's

promul gations do not show that the U nited States retained t itle to the

Tongass National Forest. Alaska has now adopted som e of these

arguments to support its position in the present original action. See

Brief in Support of Motion to File A Complaint, supra , at 19-23.



11

IV. Parens Patriae Principles

Original jurisdiction cases against a state or the federa l govern ment

often involve issues that con cern n ot on ly the i nitial par ties, but many

others as well. For instance, the question whether a state or the

federal government holds t itle to particular land may interest persons

who live in th e ar e a or wish to u se the property. Perhaps for this

reason, mot ion s to intervene in o riginal jur isdi ct ion cas es are not

uncommon.

In ruling on motions to intervene in original actions, the Supreme

Court oft en has relied on parens patriae principles. These principleshave led the C ourt to presu me t hat a sovereign represents the interests

of all of its citizens whenever the sovereign litigates a matter of

sovereign interest. As a result, the Court generally has rejected

mot io ns t o in tervene b y private parties in original actions involving

states or the federal government, unless the private parties can show

a reason for overcoming this presumption.

In New Jersey v. New York , 345 U.S. 369 (1953) (per curiam),

New Jersey filed an original action against New York State and New

York City. New Jersey asked the Court to enjoin the defendant s from

diverting cer tain amoun ts of water from the Delaware river. See id. at370 . Later , Pennsylvania joined the lawsuit to protec t its own rights.

See id. at 371. Th e Court entered a decree establishing an

apportionment of the water and retained jurisdiction. See id. Some

time afterward, when New York moved for modif ication of th e decree,

the City of Philadelphia moved to intervene so that it could assert its

own interest in the use of the Delaware River. See id. at 372.

The Supreme Court denied Phi ladelph ia’s motion to intervene on

grounds that the State of Pennsylvania already represented

Phil adelph ia’s interests. The Cour t explained:

The “ parens patriae ” doctrine . . . is a recognition of the

principl e that the state, when a part y to a suit involving a matter

of sovereign interest, “must be deemed to represent all its



12

citizens.” Com. of Kentucky v. State of In diana, 1930, 281

U.S. 163, 1 73-17 4. The principle is a necessary recognition of

sovereign dignit y, as well as a working rule for good judi cial

administrat ion. Otherwise, a state might be judicially

impeached o n matters of policy by its own subjects, and there

would be no practical l imitation on the number of citizens, as

such , who wou ld be ent itled to be made parties.

345 U.S. at 372-73.

The Court u se d similar reasoning in Utah v. Un ited States , 394

U.S. 89 (1969). In that case, Utah sued the United States seeking toclear title to relicted lands resulting from the shrinking of the Great

Salt Lake. See id. at 90. A private corporation, Morton International,

Inc., claimed title to some of the land and so ught to intervene. See id.

The Court denied Mor ton’ s application. See id. at 96. Altho ugh the

Court did not cite New Jersey v. New York , it emphasized the same

concerns. In particular, the Court worried that the number of parties

mi ght become impractical if private citi ze ns coul d inte rvene . The

Court said: “If M ort on is admitted, fairness would require the

admission of any of the other 120 private landholders who wish to

quiet th eir title t o p ortions of th e relicted lands, greatly increasing the

complexity of this litigation.” Id. at 95-96.

The Court also has relied on parens patriae principles when

dec iding whe ther and ho w to exercise its original jurisdiction. See

e.g., Nebraska v. Wyoming , 515 U.S. 1, 21-22 (1995) (dismissing

fears that private cit izens might later in tervene in an original action

because, under New Jersey v. New York , a state “is presumed to speak

in the best interest of those citizens”); United Stat es v. Nevada , 412

U.S. 534, 538 (1973) (per curiam) (declining to exercise original

jurisdiction so that private c itizen s, “who ordinarily would have no

right to intervene in an original action in this Court, New Jersey v.

New York , 345 U.S. 369 (1953), would have an opportunity to

participate in their own behalf if this litigation goes forward in the



13

District Court.”); Kentucky v. Indi ana , 281 U. S. 163, 173-174 (1930)

(dismissing individual defendants from an original action on grounds

that a “state suing, or sued, in this court, by virtue of the original

jurisdiction over controversies between states, must be deemed to

represent all its citizens”).

In this case, the Proposed Intervenors are citizens of both Alaska

and of the United Stat es. Accordi ngly, under parens patriae

principles Alaska and the United States are presumed to represent

their interests. The Prop osed Intervenors therefore cannot inter vene

unless they can show some basis for overcoming this presumption.

V. Exceptional Circumstances

The Proposed Int ervenor s have advanced a number o f conten tions

that might be construed as arguments for overcoming the general

presumption, based on parens patriae principles, that the United

States and Alaska will rep resent their interests. In the end, however,

they have not shown the existence of any established bases for

overcoming the presumption. Nor have they presented any other

sufficient reason for dispensing with the presumption.

A. Compelling Interest

In New Jersey v. New York , the Court identified a possible

circumstance in which a private party could participate in an original

action not withstan ding ord inary parens patriae principles. The Court

indicated that a pr ivate part y may intervene if th e private p arty h as a

“compelling interest” in the litigation . The C ourt said more fully:

An intervenor whose state is already a party should have the

burden of showing some compelling interest in his own right,

apart from his interest in a class with all other citizens and

creatures of the state, which interest is not properly represented

by the state.

345 U.S. at 373.



15

Tongass area. They say that in the Peratrovich litigation t he United

States did not support their claim that the United States had title to

the ma rine s ubmerged l and in the Tongass National Forest. Although

the United States now insists that it does have title, the Proposed

Intervenors ask: “What assuran ce do the Propo sed Int erven ers have

that the United States will not once again change its position o n t he

own ership of the submerged lands in the Tongass National Forest?”

Reply Brief in Support of Motion to Intervene and File Answer at 3,

Alaska v. Uni ted States , No. 128 Orig. (U.S. Apr. 17, 2001).

The Propo sed Intervenors, without qu estio n, have so me b asis for their concern. In Peratrovich , although the United States never

actually asserted that Alaska owns the property, it made arguments

that now support Alaska’s position. As described at length above, the

United Sta tes asserte d that ce rtain statutes and p rocl amations did not

show an in tent b y the United Stat es to r etain title to submer ged la nds

with in the Tongass National Forest. The United States, moreover, has

not ruled out the possibility that it might settle the case with Al aska

and agr ee that Al aska has tit le to all or p art of th e submerged lands in

dispute.

Concern about how the United States will conduct litigation to

protect its position, ho wev er, does not rise to the le vel o f a

“compel ling interes t.” The Court, in fact, has addre ssed this type of

concern in two previou s cases. In Utah v. United States , Morton

International asked to in ter vene in part because the company fel t that

the Soli citor General was not protect ing the United St ates’s interests.

See 394 U.S. at 94. Mort on objected in particular to a stipulat ion by

the Solicitor General that could d eprive the Unit ed States of a cla im

to some of the subject propert y. See id. The Court rejec ted this line

of argument. The Court re cognized that Congress had entrusted th e

Solicitor Ge neral with au thority to cond uct the federal governmen t's

litigation. See id. at 95 (citing 28 U.S.C. § 518 (1964)). The Court,

accordingly, reasoned that the Solicitor General had authority to



16

remove issues from the case if he believed that he could advance no

argument to vindicate the government's interest. See 394 U.S. at 94

95. The Court concluded by saying “we can perceive no compelling

reason requiring the presence of Morton in this lawsuit.” Id.

In Kentucky v. Indiana , 281 U.S. 163 (1930), the Court similarly

refused to allow individuals who doubted their state’s litigation

str ategy to particip ate in an or iginal actio n. In tha t case, Ken tuc ky and

Indiana agreed to bu ild a bridge over the Ohio River. See id. at 169.

A group of Indiana taxpayers and citizens sued Indiana in state court

to bloc k the construct ion. See id. Kentucky then br ought an originalaction in the Supreme Court against I ndiana and the individual s who

were plaintiffs in the state action, seeking to restrain any breach of

contract by Indiana. See id. The Court dismissed the individuals.

See id. at 175. Although the individuals had cause to doubt Indiana’s

willingness to opp ose Kentucky in the original action, the C ourt

explained that the st ate of Indiana “must be deemed to represent all its

citizens” and that the individuals had “no separate individual right to

contest in such a suit the posit ion taken by the state.” Id. at 173.

For these reasons, the Proposed Intervenors have not shown a

compelling interest in participating in the litigation.

B. Indian Tribes

The Supreme Court has permitted intervention in original actions

more generously when the parties seeking intervention are Indian

Tribes. In Arizona v. California , 460 U.S. 605 (1983), five Indian

Tribes sought to intervene in a n or iginal ac tion co ncerning water ri ghts

to the C olorado River. Although t he United St ates already wa s

litigating on their behalf, the Court decided that the Tribes should

have a right to speak for themselves. See id. at 615. Th e Court said:

The Tribes . . . ask leave to participate in an adjudication of

their vital water r ights that was commenced by the United



17

Stat es. . . . The Tribes’ inter ests in t he waters of the C olorado

basin have been and will continue to be determined in this

li tigation since the Un ited Stat es’ actio n as th eir rep resen tative

will bind the Tribes to any judgment. . . . Moreov er , the

Indians are entitled “to take their place as independent

qualified members of the modern body p olitic.” Poafpybitty v.

Skelly Oil Co. , 390 U.S. 365, 369 (1968), quoting Board of

County Commissioners v. Seber , 318 U.S. 705 (1943).

Accordingly, the Indians’ participation in litigation critical to

their wel fare should not be discouraged.460 U.S . at 614-15. The Cou rt added : “For this reason, the States’

reliance on New Jersey v. New York , 345 U.S. 369 (1953) ( per

curiam ), wher e the Co urt denied the Cit y of Ph ilade lphia 's request to

intervene in that interstate water dispute on the grounds that its

interests were adequately represented by the State of Pennsylvania, is

misplaced.” Id. at 615 n.5.

In their bri efs, the Proposed Intervenors emphasize that they are

na tive Alaskans. See Brief in Support o f Mo tio n fo r Le ave to

Intervene and File Answer, supra , at 1-2. At oral argument, they

further suggested that their status as native Alaskans should limit the

application of parens patriae principles to th em. See Transcript of

Oral Argument on Motion to Intervene at 9, Alaska v. Uni ted States ,

No. 128 Orig. (U.S. Sept. 11, 2001).

Even if the Proposed Intervenors’ status as native Alaskans made

them th e equivalent of recognized Indian Tribes, they would still lack

a direct interest in the subject matter of the present litigation

comparable to the interests of the Tribes that were permitted to

intervene in Arizona v. California . In tha t case, the litigation

concerned water rights and the intervening Tribes had their own water

rights which were bei ng det ermined in the lit igation. See 460 U.S. at

615. The present case concer ns title to land, and the Proposed

Intervenors, as noted earlier, make no claim of title; they argue only



18

that the Court’s determination of which sovereign has title will affect

their ability to us e the l and.

Moreover, as the United States and Alaska both point out, and as

the Propo sed Intervenors conced e, see Transcript of Oral Argument on

Motion to Intervene, supra , at 8-9, the United States has not

recognized the Shakan Kwaan T hling-Git Nation or Taanta Kwaan

Thling-Git Nation as Indian Tribes. As noted above, a federal

regulat ion lists a ll recognized Indian Tribes, and it does no t inc lude

them. See 65 F ed. Reg. 13,29 8. These Nations, moreover, do not have

any go vernm ent-t o-governm ent relations with either the Unit ed Statesor the state of Al aska.

The Cour t’s reasoning in Arizona should apply only to recognized

Indian Tribes. Recognized Tribes “ exercise inh erent sovereign

authority over th eir members and territ ories.” Okl ahom a Tax Com'n

v. Citi zen Ban d Potawatomi Indian Tribe of O klahoma , 498 U.S.

505, 509 (1 991). In con trast, althou gh the Propo sed Intervenors may

have some sp ecial rights or privileges because o f their status as native

Alaskans, they lack sovereignty and therefore should not have a

special claim to participation in an inter-sovereign original ac tion. The

doctrine of parens patriae should apply equally to t hem as to other

citizen s. For these reasons, the Pr op osed Intervenors c ann ot avail

themselves of the special princip les ap plicable to Ind ian Trib es.

C. Policy Arguments

The Supreme Court has not always strictly followed the parens

patriae principles expressed in New Jersey v. New York . On the

contrary, it has sometimes allowed private parties to intervene in

original actions even though a state or the federal government already

may have been represen ting their interest s. For instance, i n Maryland

v. Louisiana , 4 51 U.S. 725 (1981 ), eight states initiated an original

action against L ouisiana, seek ing to invalidate a tax imposed on



21

intervene, no one else has fil ed any papers. But th at was also the

situat ion when th e Court denied the City of Philadelphia’s motion to

intervene in New Jersey v. New York . The question the Cou rt

considered in that case was whether “there would be [a] practical

limitation on the numb er of citizens . . . who would be entitled t o be

made parties.” 345 U.S. at 373. Here, as in that case, any numbe r of

persons might desire to intervene.

2. Burde n Imposed on the Litigation

In Arizona v. California , when the Court allowed five IndianTribes to intervene, it no ted that the parties op posing intervention had

“failed to present any persuasive reason wh y their interest w ould be

prejudiced or this litigation unduly delayed by the Tribes’ presence.”

460 U.S. at 615 . In this case, the Proposed Intervenors emphasize that

they also d o no t intend to burd en th e litigation. They repr es en t in

their brief that th ey “do no t seek to br ing new claims or issues against

the state or th e federal government.” Motio n for Leave to Intervene

and File Answer, supra , at 7.

Neither the Unit ed States nor Alaska have iden tified specific

problems tha t int erven tion might cause in this case. Alaska, however,

conte nds the intervenors are inherently burd ensome. Even if the

schedule for the litigation does not change, Alaska suggests that the

addition of another party will necessarily complicate the proceedings.

Moreo ver, so lon g as the Proposed Intervenors are not attempti ng to

raise new and different arguments, neither they nor the Court can

expect to gain much from their participation.

In an often cited passage from Crosby Steam Gage & Valve Co. v.

Manning , Maxwell & Moore, Inc. , 51 F. Sup p. 972 (D. Mass. 1943),

Judge Wyzanski expressed similar concerns and advocated

participation as amicus curiae an alternative to intervention:

It is easy enough to see what are the arguments against

intervention where, as here the intervenor merely underlines



22

issues of law already raised by the primary parties. Additional

parties always take additional time . Even if the y have no

witnesses of their own, they are the source of additional

question s, objec tions, b riefs, arguments, motions and the like

which tend to make the pro ceeding a Donn ybrook Fair. Where

he presents no new questions, a third party can contribute

usually most effectively and always most expeditiously by a

brief amicus curiae and not by intervention.

Id. at 973.

For t hese reason s, the po ssibility that the Proposed Intervenorsmight impose only a limited burden on the proceedings is not a stron g

argument for intervention. The Proposed Intervenors, however, may

participate as amicus curia e .6 The United States and Alaska both

have said tha t th ey do not in general object t o this part icipation.

3. Fairness

The Proposed Int ervenors als o argue that the entire history of th eir

efforts to regain permission to harvest roe on kelp makes denying

intervention unfair. They em phasize t hat the y have litigated the ir

rights under ANILCA wi th the Uni ted State s for almo st ten years, on ly

to have the case stayed when Alaska filed this original action.

With out intervention, they can not participate here. Making matters

worse, they fear that the United States will settle with Alaska, thus

preventing any court from ever ruling on their arguments.

6The Proposed Intervenors have not asked to participate in this case as

amicus curiae , but have indicated that they may make this request in the

future. See Transcript of Oral Argument on Motion to Intervene, supra , at

27. The Special Master believes that the P ro posed Intervenors have

demonstrated sufficient interest to participate as amicus curiae , and will

decide questions that may arise about the details of their possible

participation by future order, should suc h a request be made.



24

extent that the Proposed Intervenors avail themselves of this

opportunity, they can make the legal arguments that they want.

Accordingly, even tho ugh the Propo sed Inte rvenors justl y may feel

unfortunate, t he ci rcumstances do not s uffice t o require intervention.

The representatives of the United States have the power to decide

what arguments the United States will offer in contesting Alaska’s

claim to the submerged land.

VI. Federa l Rule of Civi l Proce dure 24

The Proposed Intervenors rely heavily in their briefs on FederalRule of Civil Procedure 24 (a) and (b). 7 This Rule governs motions to

7Rule 24(a) provides for “Intervention as of Right” as follows: “Upon

timely application anyone shall be permitted to intervene in an action: (1)

when a statute of the United States confers an unconditional right to

intervene; or (2) when the applicant claims an interest relating to the property

or transaction which is the subjec t of the a ction and the app licant is so

situated that the disposition of the action may as a practical matter impair or

impede the appli cant's ability to protec t that interest , unless the app licant's

interest is adequately represented by existing parties.” Fed. R. Civ. P. 24(a).

Rule 24(b) specifies the following rule for “Permissive Intervention”:

“Upon timely application anyone may be permitted to intervene in an action:

(1) when a statute of the United States confers a conditional right to

intervene; or (2) when an applicant's claim or defense and the main action

hav e a question of law or fact in common. When a party to an action relies

for ground of claim or defense upon any statute or executive order

administered by a federal or state governmental officer or agency or upon

any reg ulation, order, requirement, or agreement issued or made pursuant to

the statut e or ex ecutive ord er, the officer or agency u pon timely app lication

may be permitted to intervene in the action. In exercising its discretion the

court shall consider whether the intervention will unduly delay or prejudice

the adjudication of the rights of the original parties.” Id. Rule 24(b).



25

intervene in federal district cour t act ions . The Proposed Intervenors

have discussed the elements of the Rule at length, and cited many

lower court decisions interpreting the Rule.

Rule 24 does not alter the conclusion that the Supreme Court

should deny intervention in this action based on parens patriae

principles. The Supreme Cou rt do es not necessarily follow Rul e 24

when rul ing on motio ns to interv ene in original action s. Indeed, under

Supre me Court Rule 17 .2, the Fed eral Rules of Civil Procedure ser ve

only “as guides” i n or iginal j uris diction cases and th e Court

specifically has iden tified Rule 2 4 as one that serves merely as a guidewithout contro lling force. See Arizona v. Cal ifornia , 460 U.S. 605,

614 (1983). Accordingly, the principles articulated in New Jersey v.

New York and t he ot her de cisions cited above take precedence over

the text of Rule 24 and any lower court interpretations of the

provision. 8

8Even if Ru le 24 directly applied to this action , the Specia l Master wou ld,

noneth eless, recommend the same result. Under Rule 24(b), parens patriae

principles would pr ovide reason for denying permissive intervention. In

addition, the Special Maste r is persuaded by the reasoning of the many

federal courts that have considered parens patriae principles when ruling on

motions to intervene as of r ight un der Rule 24(a). Although these courts

have not applied the same rules that the Supreme Court uses in original

actions, they have held applicants to a higher standard on the issue of

adequacy of representation when they seek to intervene on the same side as

a governmental entity. See, e.g., Hopwood v. Texas , 21 F.3d 603, 605 (5th

Cir. 1994); Mausolf v. Babbitt , 85 F.3d 1295, 1303 (8th Cir. 1996);

Environmental Defense Fund, Inc. v. Higginson , 631 F.2d 738, 740 (D.C.

Cir. 1979); 7 C Charles A. W right and A rthu r R. Miller, Fe deral Pr actice &

Procedure § 1909 (1986 & Supp. 2000). But see Grutter v. Bollinger , 188

F.3d 394, 400 (6th Cir. 1999) (rejecting this approach).



26

VII. Assessment o f Costs

In their supplemental briefs, the parties and th e Propose d

Intervenors addressed the Proposed Intervenors’ responsibility for

paying a por tion of the Special Maste r’s future fees and exp ense s. The

United St ates and Alaska ea ch have argued t hat, if the Court permits

intervention, the Proposed Intervenors should pay a substantial

port ion of the fees. In contrast, citing financial hardship , the Propo sed

Intervenors have request ed that thei r financial respons ibility be limited

to their o wn o ut-o f-pocket exp enses.

If the Court agrees with the recommendation of this report, anddecides not to pe rmit i ntervention, t hen it need not addre ss th e issue

of what costs the Proposed Intervenors would have to pay once they

became part ies. If the Court di sagrees and pe rmits int ervention, th e

respons ibility of the Proposed Int ervenors to p ay t he Special Master’s

fees and expenses may depend on the scope of the permitted

inter vention. Prior to knowing what ro le the Proposed Intervenors

mi ght pl ay in thi s li tigation if a llowed to participate, a

rec ommenda tion regard ing respo nsibili ty for fees and expenses would

be premature.

The Special Master has incurred fees and expenses in preparingthis report on the motion to intervene. One issue raised at oral

argument was whether the Proposed Intervenors have any

respons ibility for these costs. Althou gh the Court sometimes has

ordered non-parties to pay a portion of a special master’s fees and

expenses, see, e.g., Nebraska v. Wyoming , 504 U.S. 982 (1992)

(assessing costs on amici curiae who did not object), neither the

United States n or Alaska has asked for such an assessment in th is case.

Accordingly, the Proposed Int ervenors should not have responsibility

for the costs of resolving this motion.

us supreme court: orig128 112601

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