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United States v. Howell

United States District Court, D. Idaho

September 19, 2018

LEROY HOWELL and KATHERINE M. HOWELL, husband and wife, Defendants.


          B. Lynn Winmill Chief U.S. District Court Judge.


         Pending before the Court are two motions to intervene filed by the Nez Perce Tribe (Dkt 9) and Christopher George, Lou Ann Lasswell, Samuel George, Jennifer George, Felicia Salas, and Shawney Hardridge (collectively “Allottees”) (Dkt 29) (hereinafter “the applicants”). For the foregoing reasons, the Court will grant the motions.


         This case began with the filing of a Complaint by the United States against Leroy and Katherine Howell on April 19, 2016 (Dkt 1). The Complaint alleges, inter alia, that since the mid-nineties, the Howells have illegally removed sand and gravel from their scrapyard business for profit, including diverting Seven Mile Creek in which Allotment 1156 runs through, on said lands. Despite multiple BLM surveys (in 2005 and 2010) concluding the Howell's property encroached on several acres of land held in trust by the United States on behalf of the Nez Perce and Muscogee Creek Nation Tribes, the Howells have ignored multiple cease and desists orders sent by the BLM and BIA regarding the affected properties.

         Following the 2005 BLM resurvey on February 27, 2008, the Howells filed an administrative protest with the BLM contesting the survey's boundary lines. The protest was denied. The Howells filed an appeal which was also denied. In 2011, the Howells filed an action to quiet title to 146 acres of land surveyed in 2005, including 1.97 acres in Allotment 1156 and 6.630 acres in Tract T3193A. The Nez Perce Tribe and the Department of the Interior filed successful motions to dismiss the Howell's claim.

         In its Complaint, the United States prays for relief in the form of an injunction, ejection, conversion, trespass, and nuisance. The applicants now seek to intervene.


         Federal Rule of Civil Procedure 24 provides for intervention as a matter of right, as well as permissive intervention. Rule 24(a) delineates intervention as a matter of right to a four-part test. To grant a motion to intervene as of right requires: (1) the motion be timely; (2) the applicant must claim a “significantly protectable” interest relating to the property or transaction which is the subject of the action; (3) the applicant must be so situated that the disposition of the action may as a practical matter impair or impede its ability to protect that interest; and (4) the applicant's interest must be inadequately represented by the parties to the action. Wilderness Soc. v. U.S. Forest Serv., 630 F.3d 1173, 1177 (9th Cir. 2011). Whether intervention is appropriate rests on “practical and equitable concerns. Sullivan v. Quality Loan Service Corp., No. 1:10-CV-436-BLW, 2011 WL 124280, at *4 (D. Idaho Jan. 11, 2011). Further, “the requirements for intervention are broadly interpreted in favor of interventions.” Id. The standard is construed liberally but “the applicant bears the burden of showing that each of the four elements is met.” Freedom from Religion Foundation, Inc. v. Geithner, 644 F.3d 836, 841 (9th Cir. 2011). Failure to satisfy any one of the requirements is fatal to the application. Id.

         Rule 24(b) allows permissive intervention if three threshold requirements are met: (1) intervenor shares a common question of law or fact with the main action; (2) its motion is timely; and (3) the court has an independent basis for jurisdiction over the applicant's claims. Donnelly v. Glickman, 159 F.3d 405, 412 (9th Cir. 1998); Fed.R.Civ.P. 24(b)(2).


         1. Intervention as a Matter of Right

         There is really no dispute about the first three parts of the test for intervention as a matter of right. The applicants have established those requirements convincingly, and Defendants fail to even argue against the applicant's position on those three parts of the test. The only real question before the Court is the strength and scope of the United States government's representation, as Trustee, of the Tribe and Allottees' interest in Tract T3193A and Allotment 1156, respectively.

         “The most important factor in determining the adequacy of representation is how the interest compares with the interests of existing parties.” Arakaki v. Cayetano, 324 F.3d 1078, 1086 (9th Cir. 2003). A presumption of adequate representation arises when the proposed intervenor and the “existing party have the same ultimate objective.” Id. As such, a compelling showing is required to show inadequate representation when “the applicant's interest is identical to that of one of the present parties[.]” Id. “The burden on proposed intervenors in showing inadequate representation is minimal, and would ...

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