*3 AR; Foods, Inc., Jones, Springdale, Tyson HARTZ, TACHA, EBEL, and Before LLP, Bond, Fay- Rock Michael R. Kutak Judges. Circuit etteville, AR, him on the briefs for with Foods, Inc., Defendants-Appellees Tyson HARTZ, Judge. Circuit Chicken, Inc., Inc., Poultry, Tyson Tyson, (the Nation) ap- The Cherokee Inc.) Weeks, Cobb-Vantress, (Gary V. court’s denial of its mo- peals the district III, M. Bassett James Woodson W. dispute tion to intervene between Graves, Chadick, Tuck- Dupps K.C. Vince (the State) and Defen- State of Oklahoma AR; Firm, er, Fayetteville, Bassett Law (collectively, Tyson). The dants-Appellees Owens, Rose, Ow- George Randall E. W. Tyson’s had sued because Firm, P.C., Tulsa, OK, him with ens Law in the Illinois disposal poultry waste Defendants-Appellees, the briefs for (IRW). IRW, in River Watershed Inc.) Farms, George’s George’s, Inc. and claim and the Nation which both the State (Robert Perrine, McGivern, Redemann, P. interests, one million approximately covers Redemann, Reid, Taylor, Berry & straddling the Oklahoma-Arkansas acres Tulsa, OK; Sanders, P.L.L.C., E. Robert large- it are hundreds of border. Within Jackson, MS, Williams, P.A., Young Tyson operates some poultry farms. scale Defendants-Appel- him on the briefs for other and contracts with of these farms Farms, Inc. and Cal- lees Cal-Maine maturity, until poultry to raise farmers Inc.) (John Tucker, Fоods, H. Maine Ty- by Tyson; using methods established Rhodes, Hill, Hieronymus, Theresa Noble maturity for poultry son collects Gable, PLLC, Tulsa, OK; Jones, Tucker & marketing. poultry- These processing and Ehrich, Jones, Krisann Delmar R. Bruce hundreds operations generate LLP, growing Lee, Faegre & Benson C. Kleibacker poultry waste each of tons of MN, thousands with him on the briefs Minneapolis, year. Defendants-Appellees Cargill, Inc. and theories, I. legal number of BACKGROUND Raising a monetary past relief Early Stages Litigation A. injunction against and an future On June the State sued years than three alleged pollution. More in the United States District Court for the litigation, Tyson into moved to dismiss Northern District of Oklahoma. Accord- ground monetary claims on ing complaint, Tyson to the initial and the required party that had Nation was poultry improperly individual farmers dis- joined. argued that not been The State posed poultry storing waste both required party but the Nation was not using it as fertilizer on lands within in which *4 negotiated agreement also an the high the IRW. Because the waste contains assigned the State its purportedly Nation levels of certain chemicals and microbes The district litigation. interests in the that are harmful to the environment and agreement court that the was invalid ruled health, disposal practices human these al- motion, granted Tyson’s restricting and lands, in legedly injury result to the wa- previously the scheduled trial ters, complaint and biota of the The IRW. injunctive eq- State’s and other claims for alleged Tyson responsible further that is uitable relief. disposal practices for these and thus the days Nineteen trial the Nation before injury resultant to the IRW. pro- moved to intervene so that it could brought The State suit as owner of the against Tyson ceed on three claims for in- IRW, streams and rivers of the as holder junctive monetary and relief. The district of all natural resources within the State’s untimely. Al- denied the motion as boundaries “in trust on behalf and for though argued that it had the Nation the public,” Complaint benefit of the promptly learning moved after the Foods, Inc., Tyson Oklahoma v. adequately represent State could not JOE-SAJ, No. 05-cv-0329 2005 WL in litigation, Nation’s interests (N.D.Okla. 13, 2005), 1842228 June and as district the Nation had court ruled Comprehensive trustee under the federal delayed long, too would be se- Response, Compensation, Environmental verely prejudiced by lengthy trial de- (CERCLA) Liability Act for natural lay necessary that would be within resourcеs Oklahoma. The initial permitted were and that the complaint stated nine causes action. Two prejudiced by Nation would not a deni- be CERCLA, causes of action were under al of intervention. § 9607. The U.S.C. first CERCLA claim jurisdiction (such We have under 28 U.S.C. recovery sought of costs as the costs § see WildEarth Guardians U.S. monitoring evaluating quality water (10th Service, IRW) Forest 573 F.3d and biota in the incurred Cir.2009) (order denying intervention was Tyson’s in responding disposal final), and affirm. district court The did practices, as well a declaration that in denying responsible abuse discretion for all future re- particular, motion to intervene. sponse costs that the State would incur. properly district court could find that the In the second claim the CERCLA State— unduly delayed in- seeking acting had as “CERCLA trustee for ‘natural in, to, by, tervene because from the outset of the belonging managed resources’ litigation it had no to believe that in by, appertaining reason held trust to or other- represent the State would in by” sought its interests wise controlled the State — monetary injury relief. of natural to and loss resources, restoring opportunity had the to meet with a the cost of I’ve including resources, poultry growers the val- number of Delawаre injured replacing inju- County, quarter from the of whom are Chero- resulting ue of lost services resources, They pro- kee. are concerned that the and the reasonable ry to the would, effect, put lawsuit them injury posed to the resources. assessing cost of I I third and fourth out of business. advised them that at 21. The State’s Id. your and federal would contact office and offer our were based on state claims Tyson’s any way They alleged law. assistance and services nuisance “inva[ded,] unreasonably might helpful to facilitate discussions disposal practices poultry problem to reconcile the litter impairfed]” with and interfere^] affecting quality water public’s and the beneficial use of Northeastern State’s IRW, damages (including Oklahoma. injunction re- punitive damages) and 4 at ApltApp., Vol. disposal meth- quiring Tyson to cease its This letter reflected Nation’s obvious at 24. and remediate the IRW. Id. ods subject interest matter law- and in- sought damages fifth claim *5 suit. Much of the IRW is within the junctive trespass relief for on the State’s and, boundaries of the Cherokee Nation interests in the IRW. The State’s property lawsuit, clearly emerged later sought penal- claims civil sixth and seventh Nation claims that various federal laws injunctive relief for violations of ties and given ownership and treaties have and Quality Environmental the Oklahoma lands, waters, natural control over and re- 27A, 2-6-105, Code, §§ tit. see Okla. Stat. sources of the IRW since before Oklahoma Code, 2-3-504; Agricultural the Oklahoma despite Yet these claims re- statehood. 2, 2-16, 2-18.1; §§ Stat. tit. see Okla. IRW, nothing in the record garding the Registered Poultry Feeding Op- Oklahoma that before 2009 the Nation ever indicates Act, 2, §§ tit. 10- erations see Okla. Stat. (much expressed to the State less reached 10-9.11; 9.7, provisions of the and certain State) that it should agreement with the Code, see Okla. Oklahoma Administrative recovery or in the State’s of costs share § The Admin. Code 35:17-5-5. State’s damages in its lawsuit. enrichment, unjust claim was for eighth disgorgement and seeking restitution was, however, engaged early The Nation alleged waste profits improper from the Tyson. and In late on with both the State A ninth claim was later voluntari- disposal. 2005, filing of the initial com- after the prejudice.1 ly dismissed with met representatives of the Nation plaint, Tyson representatives of not mention the Na- with both complaint The did The Nation discussed its interests aware of the State. tion. But the Nation was 2005, IRW, pur- Tyson asked “not In March but litigation from the outset. put that would a course of action intention to file sue when alerted State’s suit, Smith, Nation’s claims” validity of the Cherokee Principal Chad Chief the court. Id. parts of the IRW before following wrote the a letter at 647. Attorney General: Oklahoma’s 16, July complaint, filed amended complaint was later amended on two second
1. The
2007,
complaint
changes
add-
dropped
The first amended
The
occasions.
a defendant.
injunc-
seeking
penalties and
ed a count
civil
complaint
original
are irrelevant
from the
Conservation
tive relief under the Resource
appeal.
issues on
Act,
Recovery
§
42 U.S.C.
6972. The
sufficiently
sovereign
a
had
matured And because the
was
litigation
15, 2007, that
the district
joined
November
entity that could not be
without its
Discovery
scheduling
court
order:
consent,
issued
Tyson
contended
the dam-
2, 2009,
by March
completed
was to be
ages claims had to be dismissed under
following Septem-
trial
held the
was to be
19(b)
(setting
Fed.R.Civ.P.
standard
(the
September
specific
ber
date
of claims
required
dismissal
when
on April
set in a later order
being
alternative,
joined).
Ty-
cannot be
2009). Also,
day
schеduling
before
judgment
son moved for
as a matter of law
preliminary
in-
order the State
ground
on the
the State lacked stand-
“(1)
junction
Tyson
apply-
enjoining
ing to raise certain claims because it had
any
land within the
ing poultry waste
ownership
not demonstrated that it had an
allowing
application
IRW and
trusteeship
interest over the IRW’s nat-
poultry
generated
respective
at its
waste
ural resources.
poultry
the re-
feeding operations and/or
day
On the
filed its Rule 19
spective
feeding operations under
poultry
motion,
Principal
the Nation’s
Chief issued
contract with it to
land within the
a public
statement
the motion.
Aplee. SuppApp.
IRW.”
at 130. The dis-
It said:
eventually
request
trict
denied the
rights
The water
of the Cherokee Na-
preliminary injunction
September
for a
29, 2008,
Att’y
long
and we affirmed. See
tion came into existence
Gen.
before the
Foods, Inc.,
Okla. v.
B. Motion to Dismiss in the east with the land in northeastern Tyson’s original to the Although answer Oklahoma, rights water have remained complaint had raised the defense of failure However, I point intact. have to out join rеquired party, Tyson to a did not that the Cherokee Nation has not filed any steps regarding take formal that de- this motion to dismiss and it would be a 26, 2008, fense until when it June served support mistake to assume that we the discovery requests seeking the State with unconditional dismissal of this lawsuit. agreements documents and Nation, The Cherokee like the state of the State and the communications between Oklahoma, protect has to qual- the water respect Nation with to claims to natural ity jurisdiction.... interests within our 11, August resources the within IRW. On analyze will take to filing We time this responded with several docu- meantime, accordingly. and act In the indicating ments its claims to IRW hopes the Cherokee Nation to continue potentially resources conflicted with those working rights the state on water of the Nation. discussions, reg- so tribal and state in Relying part on the documents re- ulatory can in cooperate structures ad- ceived, 31, 2008, Tyson filed on October a vancing our common interests. seeking motion to dismiss the case for ApltApp., Vol. 4 join Pointing failure to Nation. responded The State to the motion on ownership Nation’s historical claims of January 2009. The response devoted over resources within the IRW and its possible money by little attention to claims subjected concern being multiple about to “[Tyson] It the Nation. said: of- ha[s] and obligations, inconsistent assert- fered evidence that an of ed that the no award dam- required party Nation was a 19(a)(1). ages [Tyson] the lawsuit. See Fed.R.Civ.P. the State would as any rights prosecute trespass impede or impair matter practical Id., claims); Agree- at 415. And that the interest.” Vol. 3 nuisance [Nation] indi- Nation “has not noting that the purported retroactivity prohib- after ment’s was [Tyson],” it it to sue and, event, cated that intends by any ited Oklahoma law event, pre- any “CERCLA added that jurisdictional could not cure defects natural resource recovery of cludes double complaint that existed at the time the was did not Id. at 416. damages.” filed. seeking any it was much as hint that so The district court then ruled Nation’s benefit. damages for the required party Nation was a under Fed. later, May months Four 19, and, observing join- after R.Civ.P. pending, Tyson’s Rule 19 motion was
while feasible, was not dismissed each of the der into an and the State entered damages. explained It State’s claims for (the that acknowl- Agreement) agreement that the claims could not be de- interests the Nation’s “substantial edged cided without the Nation’s involvement: lands, natural re- water and other legally binding assignment Without Id. at within the [IRW].” sources located rights and inter- the Cherokee Nation’s Agreement, purport- which was 532. The IRW, damage ests in the award to the (the 13, 2005 date on June edly effective abridges right State either filed), executed was was complaint its claim pursue Cherokee Nation to own of the Nation and Attorneys General or, the extent the money damages assigned It to the State Oklahoma. Nation is not barred issue Cherokee any claims re- right prosecute Nation’s preclusion, conversely exposes claim brought by the State lating to those multiple, to the risk of incon- defendants against Tyson. Although lawsuit And ... if the State judgments. sistent that “it is not neces- Agreement asserted damages, its claim for defendants loses sary precise to resolve the Court a real and substantial risk the face sovereign’s interests nature of each unfettered issue Cherokee lands, natural resources water and other preclusion, pursue claim dam- id., [IRW],” also stated *7 its own. age claims on necessary the court find it to deter- should interests, of those the mine the nature court also ruled Id. at 564-65. The void,” “null and id. at Agreement would be standing prosecute “to the State lacked 534. the monetary damage injury claims for lands, in substantial interests [Nation’s] 2, 2009, court held July the district
On natural resources located water and other motion, Tyson’s Rule 19 argument oral on light of its in the Id. at 567-68. IRW.” in July granted 22 it the motion and on as moot several ruling, the court dismissed part. it in The court first part and denied the dam- outstanding motions was invalid. Agreement concluded that the (1) unsuccessfully not The State Agreement ages that the did claims. It reasoned Also, Tyson statutory standards for reconsideration. meet Oklahoma’s moved State, with Indian en- cooperative agreements joined by the and the Tribes; Attorney that the General But that discussions. gaged settlement not authorized to enter the Nation was proved unsuccessful. effort (3) that agreements; into Oklahoma such Intervene Motion to C. assignment of state-law prohibited law 2, 2009, days September nineteen (thereby On out of contract arising claims not begin, the before trial was scheduled purported Nation’s transfer negating the Nation filed a motion to intervene as of to once this trial concludes in October or 24(a). The Na- Novеmber of 2009. right under Fed.R.Civ.P. proposed complaint,
tion’s intervenor as- (citation omitted). Id. serting ownership the Nation’s interest September days On six before the IRW, alleged CERCLA claims for date, scheduled trial the district court held cost-recovery and a federal- damages a hearing on the Nation’s motion. The in- damages nuisance-law claim for Attorney acknowledged Nation’s General State, junctive day, relief. The next that the Nation very diligently had “tried assuming that intervention lawsuit,” to become a to this had claims, would resuscitate its own ownership “never wished to have our days moved to continue the trial for 120 case,” an issue in this [IRW] and had “in order to remove obstacles to the asked “not to assert our interest in Motion to granting of the Intervene Id., the watershed.” Vol. 5 at But 869. Nation,” Motion for Cherokee State’s Con- argued she timely the motion was Foods, Inc., 1, Tyson tinuance of Trial at previously because the Nation had thought (PJC) (N.D. No. 05-cv-329-GKF Okla. rely protect that it could on the 2009); Sept. September 10 and on it addressing pollution,” “interest id. response support filed a of the Nation’s and did not discover until motion to intervene. July court’s order it could not. She also contended thаt the Nation would response Septem- also filed a permitted suffer if it were not ber 10. It contended that the Nation’s join because, among reasons, other untimely. motion to intervene was And prosecute lacked the resources to the case respect request to the State’s for a without the State’s assistance. She con- continuance, 120-day Tyson argued that delay ceded there would be some request “grossly underestimate[d]” granted, were the Nation’s motion but ar- need for additional if the Nation time were gued that no more than a two-month ApltApp., allowed to intervene. Vol. 4 at necessary. would be It discovery asserted that “extensive briefing adjudicate supported will The State required posi- Nation’s additional, argued tion. It that permitting the numerous interven- complex issues of tion enlarge scope would not law and fact virtue of the Cherokee original only claims and would entail mini- separate Nation’s claims and interests.” discovery. mal additional It Id. It also further con- resetting said the trial date timely tended that the Nation’s motion would cause was disruption: severe *8 because the Nation had be- counsel, calendars of [T]hе defense de- until July lieved the district court’s fense witnesses and perhaps the calen- order adequately pro- that the State was dar of the not Court are so malleable tecting its interests. long that a several month trial can sim- ply penciled be a mere four months countered that because the Na- suggests. from now as the rights De- tion had sat on its September until counsel, fense defense witnesses and this untimely. its motion was It also postponed delayed have Court and other contended that intervention would cause important case, great disruption business and cases order to to the because re- accommodate Plaintiffs’ a suscitating previously demands for dismissed claims September new, 21 trial with expec- require addressing date would complicated issues, tation that such can matters be attended such as the extent of the Nation’s may intervene. The Cherokee Nation over the IRW and whether ownership claims. of limitations barred its in a bring separate statute its claims lawsuit if it wishes. This Court—would have been court denied the Nation’s The district pleased grant the Nation’s motion to It said: motion. timely. intervene if it had been Unfor- particularly easy a issuе and This is not reasons, tunately it is not. For these as perfect no resolution to this there is well as the other reasons set forth in the four This case was filed over issue. brief, the motion to inter- defendants^] trial years ago, and three months and vene ... is denied. than a week begin scheduled to less is stated, today. previously As Id. at 927-28. possibility Nation admits ... “there’s September On and ... in the event this Court delay” Tyson proceeded to a trial on bench intervention. The Na- permit were to equitable claims. Trial State’s took 52 proposed its motion a tion attaches to days parties awaiting and the are final three complaint intervenor’s judgment. filing action. The of an inter- causes of including a federal complaint, venor’s II. DISCUSSION trig- claim would common law nuisance 24(a)(2) provides, Fed.R.Civ.P. day delay. than a 120 It ger more pertinent part, as follows: require the reinsertion of three would motion, timely permit On the court must previously of action that were causes anyone to intervene who: dismissed, consequent resuscitation pertaining numerous motions of relating proper- claims an interest action, both motions for
those causes ty subject or transaction that is the li- summary and motiоns in judgment action, dispos- and is so situated that Perhaps significantly, more mine. may action trigger necessity ing practical of a new discovery pertaining impede to at or impair round matter the movant’s issues, interests, limitations ability least the statute of protect unless summary new round of motions for existing parties adequately represent judgment likely a new round of that interest. limine,
motions in in addition to those Thus, may a movant intervene as a matter already 41 that have been filed. “(1) (2) timely, right [motion] approach would result de- Such relating claims an interest [movant] lay expense, severely which would is the property or transaction which who have been ac- parties (3) action, subject of the the [movant’s] tively proceeding past toward trial these impaired impeded, interest years. [Tyson] ade- four-plus ha[s] adequate- interest is [movant’s] quately demonstrated the Cherokee by existing parties.” El- ly represented Nation knew of its interest this case P’ship v. BP Am. Prod. liott Indus. Ltd. litigation from the outset of the but *9 Cir.2005). (10th Co., 1091, 407 1103 F.3d chose not to intervene for a number of dispute matter of in Timeliness is the sole will reasons and the Court not second- appeal. this guess those reasons. A. of Review Standard prejudiced The Nation will not be in ruling a We review district court’s the sense that its claims will not be to for an abuse of discretion. impaired by the denial of its motion on timeliness 1232 Coal, argue, The Nation and the State howev- Counties Stable See ArizJN.M. of Interior, Dep’t er, v. 100 F.3d
Econ. Growth that the timeliness of the Nation’s mo- Cir.1996). (10th 837, Under 840 it only tion must be measured from when standard, “a trial abuse-of-discretion recognize had reason to that its interests un will not be disturbed court’s decision being adequately represented by were not a court has definite appellate less the party litigation. particular, to the that the lower court made firm conviction they contend that the Nation judgment or exceeded a clear error of adequately believed the State was choice in the circum permissible bounds of shortly until representing its interests be- Hamilton, 122 v. F.3d Phelps stances.” According fore the motion to intervene. to Cir.1997). (10th 1309, 1324 (1) them, 31, 2008, only it was on October when filed its Rule 19 motion to of the Nation’s The Timeliness B. required party, dismiss for absence of a Motion that the the possi- Nation became aware of a motion to inter The timeliness of bility that its interests would not be ade- light “in of all of the vеne is determined (2) State, quately represented by the Sanguine, Ltd. v. U.S. circumstances.” 22, July 2009, it until was not when the (10th Interior, 1416, 1418 F.2d Dep’t 736 motion, district ruled on Cir.1984). recognized three fac We have definitively the Nation knew that the State (1) important: particularly “[ tors as ] in represent could not fact its interests. knew of length of time since the [movant] unusual circumstances.” to the [movant].” ation abuse of discretion. We contends should also consider [its] interests in the are not exclusive and the trial court existing parties; these Id. But these consider case; “the existence of factors establish an [and disagree. Id. The Nation [ (2) ] ] prejudice been moving to before the motion to intervene. After movant’s interests were an earlier motion sented [5] We adequately represented by a party—would be said to have intervene agree to intervene'—when that a adequately repre- unduly delayed its interests had potential party have been de- until shortly all, County, v. nied. See San Juan Utah Length 1. Time Since (10th States, 1163, United 503 F.3d 1203 Interest Knew of its Cir.2007) Therefore, (plurality opinion). applicant appears ‘When join we the other circuits that measure litigation but has have been aware of the delay frоm when the movant was on notice unduly seeking to delayed protected by that its interests not be reluctant generally courts have been already v. the case. See Reich Wright, allow Charles A. intervention.” 7C 316, Corp., F.3d 322 ABC/York-Estes Kane, Mary Kay Arthur R. Miller & Fed (7th Cir.1995) (“[W]e expect party do not § Practice & at 539- eral Procedure petition for intervention instances (3d 2007). In ed. this case is undis potential no rea- which intervenor has Nation had been aware of puted being are not son believe interests years than litigation for more four properly represented....”); Club Sierra before its eve-of-trial motion intervene. (5th Cir.1994) Espy, 18 F.3d Indeed, even before suit was filed June (“A gauge promptness better is the Principal wrote to the Nation’s Chief speed with which the would-be intervenor “the Attorney the Oklahoma General about acted when it became aware that its inter- proposed ApltApp., lawsuit.” Vol. 4 at longer protected ests would no
1233 Co., just v. Elec. 672 the State have been original parties.”); doing Hill W. what Cir.1982) (“[Critical (4th F.2d 386 would have wanted. But the respect to timeliness is whether issue with Nation’s interests that are relevant to the proposed intervenor moved to inter- question before us аre pur- the interests ‘as soon as it became clear that the vene sued in proposed complaint its in interven- interests of the unnamed class members tion; and, see, as we shall the Nation has longer protected would no be showing made no that it ever had reason ” representatives.’ (quoting named class rely to pursue many on the State to of Airlines, McDonald, Inc. v. United 432 those interests on its behalf. 385, 394, 97 U.S. S.Ct. 53 L.Ed.2d proposed The Nation’s complaint stated omitted))); Legal (ellipsis 423 Aid three causes of All action. relied on essen- Dunlop,
Soc’y Alameda Co. 618 F.2d of tially allegations against Tyson the same (9th Cir.1980) (“[T]he cir- 50 relevant as those in the complaint, except State’s determining here for cumstance timeliness they alleged the interests of the Na- the intervenor became is when aware tion, State, rather than the with respect to longer protected its interest would no alleged pollution. The first count was ”); adequately by parties .... El- cf. for recovery CERCLA cost under 42 (“Prior liott, 407 F.3d to the dis- § alleged U.S.C. 9607. It that as a result entry trict final it judgment court’s of was of Tyson’s improper release of hazardous prospective [the intervenor] reasonable IRW, substancеs into the the Nation “has rely Appellees argue the issue of incurred, incur, and will continue to neces- subject jurisdiction.”). matter sary response ... including] costs ... course, may, There of be different de- monitoring, assessing costs of and evaluat- clarity grees of of notice that a ing quality, water wildlife and biota represent potential cannot or will not Aplt. App., IRW.” Vol. at 627-28. “Ac- interest; movant’s and the district court cordingly,” complaint, said the the “Nation (or clarity will need to consider that lack of [Tyson] is entitled to recover from all of it) weighing against the factors for and past present necessary [Nation’s] example, intervention. For the court could response declaratory judg- costs” and to a expect motion to intervene to be filed Tyson ment that is liable “for all future promptly delay significantly when necessary response costs incurred parties, other though even State, Id. at 628. The howev- [Nation].” inadequacy representation not free er, sought recovery past, pres- had not from doubt. ent, response or future costs of the Nation. Rather, sought it “all of the State Okla- little, however, It helps the Nation necessary re- past рresent homa’s its it measure when was on costs,” declaratory sponse might adequately notice that the State “all judgment was liable for represent its interests. It had such notice necessary response future costs incurred True, long before its motion. in one re- ” Id., 2 at the State Oklahoma. Vol. spect every the Nation had reason to ex- added). (emphasis The Nation could pect the protect its interests. reasonably thought never have seeking injunctive against Tyson, relief inter- representing State was the Nation’s all doing might State was that the Nation Moreover, damages. Even if recovering ests regard. wish to do the Nation believed that would not need seeking funds from under CERCLA response be- remedy prior pollution the effects of to recover future costs area), (say, money doing would be all the decontaminating cause the State *11 any theory argued The Nation has not nothing in the record (although responding ade- belief), under which the State could have prayer for recov- that supports by interest already quately represented incurred the Nation’s ery response costs monetary claim. obtaining not be answered in relief on this the Nation could in victory its suit. up We can sum as follows count, for CERC- second interests that the Nation types The Nation’s three under 42 U.S.C. damages LA sought pursue proposed complaint. resource in its Tyson’s that alleges § It First, is similar. the Nation had an interest insofar as to, “injury in de- pollution has resulted injunctive against Tyson, in relief it could of, loss of natural resources struction and reasonably have assumed from the outset IRW, which the [Nation] in the ... for adequately that the State would of the suit trus- trustee,” alleged its just interests, represent the Nation’s and noth- Id., 4 at complaint. in Vol. tee status its ing that occurred before the Nation moved alleges that the Na- 629. The count then contrary. suggest to intervene would and neces- tion incurred reasonable “has The district court ruled that the State in- and evaluate this sary costs to assess injunctive pursue its relief and has natural jury, and loss of the destruction held a trial on that matter. The Nation damages, including resources” and seeks trial; in had no need to intervene that and “(a) restore, replace, or ac- the cost to sought modify its apparently never re- of such natural quire equivalent it to be a motion to intervene to allow (b) sources; value of lost compensable party at that trial. injury resulting from the to such services Second, insofar as the had (c) resources; the reasonable natural and in recovering past response interest and natural re- assessing injury cost of under CERCLA and assessment costs damages.” Id. resulting sources and the (for compensatory damages past both and however, the com- Again, State’s injury) punitive damages future under damages for the plaint did not seek such law, complaint federal common the State’s Nation, and the Nation could not have sought recovery for the never such the State was reasonably thought nothing suggests in the record in those dam- representing its interests the Nation could have believed count, the Nation ages. As with the first adequately those interests would be it would not need thought have in protected the State its lawsuit. the State damages to seek future because Third, the Nation had an in- insofar as “restore, acquire the replace, would response terest for its future injured or lost re- equivalent” of the CERCLA, the and restoration costs under sources; the State’s suit could not but complaint State’s did not seek such dam- the cost of have recovеred for the Nation ages Perhaps for the Nation. the Nation injury or the value to the Na- assessing could have that the suit believed State’s tion of lost services. protect this interest of the Nation count, a for the Nation’s third claim As because success the State’s suit would nuisance, in- of federal common-law the Nation to incur eliminate need for junctive to what sought relief is identical costs; nothing such future but the rec- sought the State on its claims went directly supports such a belief. ord punitive compensatory trial. But the much, most, Accordingly, perhaps past damages sought the Nation proposed what injury and future could not have been re- happened in the complaint, nothing suit. had covered for the Nation the State’s
1235 the filed its others that years since State could result from a last-minute four-plus that the complaint that would indicate intervention. longer adequately represent could no State Likewise, attempts the Nation’s to facili- interests. Either the Na-
the Nation’s tate settlement of in August the case 2009 represented tion’s interests were never (a trial) month before came too late to (the in past the interest CERCLA justify in delay moving to intervenе. After in all common-law-nuisance damages and all, party cannot excuse its unreadiness compensatory punitive damages) for trial on the ground that it had been being adequately represented by still were trying dispute. to settle the At point some relief). (the injunctive in the State interest well before trial a must realize that particular, respect with to these inter- plan it needs to possibility for the that point ests the Nation could not some negotiations will fail. shortly event before it moved to intervene said, however, That recognize we explain that could a sudden effort to inter- delay in itself does not a request make for alone, this the district vene. On basis untimely. intervention requirement “The unjustified properly court could find of timeliness is not a tool of retribution to in delay seeking the Nation to inter- ” punish tardy would-be-intervenor.... vene. Clinton, Utah Ass’n Counties v. Moreover, even one assumes that the (10th Cir.2001) (internal F.3d Nation believed when the State omitted). quotation marks The other fac- filed its suit would be tors in the test for untimeliness must also protected by incurring the suit from future (timeliness require- considered. See id. remedy alleged pollution, costs ment a “guard against prejudicing charged delay Nation can still be with a original parties by apply the failure to year. almost a The Nation was on notice (internal quotation sooner” marks omit- question- that its reliance on the State was ted)); al., § Wright supra 7C et able when filed its motion to dismiss (“The important 541-48 most consideration Indeed, in October 2008. the Nation was deciding whether motion for interven- certainly aware of the risk to its interests untimely tion is is whether the early 2009 when it began negotiations moving prejudice for intervention will it assign the State to those interests. ease.”). existing parties to the nowWe explained why The Nation has not it could turn to those factors. not have moved to intervene at the same conducting negotia- time it was those Prejudice Existing Parties tions; a motion protected such would have na explained The district court it in negotiations the event of deadlocked prejudice existing par ture of the or, happened, rejection ties could suffer: agreement. If the date commence- years This case was filed over four off, may ment of trial had still been far ago, three month and trial is schedule to perfect try negotiating have made sense to begin today. less than a week from As moving before given intervene. But stated, previously the Nation admits ... trial, lengthy imminent date for a the dis- delay” ... possibility “there’s a trict court could decide (and State) permit were to the event this Court taking were an unreason- filing intervention.... of an inter- by putting eggs able risk all their in the complaint, including A a federal negotiated-agreement potential basket. venor’s ignore trig- intervenor cannot common law nuisance claim would delay. proportion It and the Nation day a 120 ger more than of three and control exercised require management the reinsertion actual previously injured action that were re- plaintiff causes of each over the dismissed, consequent resuscitation sources, resolved, yet or even matter *13 to those pertaining motions of numerous case. investigated, the action, for sum- both motions causes of that these argue The State and Nation in limine. and motions mary judgment consequence of matters would not be the it would significantly, more Perhaps to inter- any delay moving in the Nation’s necessity a new round of trigger the in- simply allowing vene the result of but at least the stat- discovery pertaining to out, correctly, that They point tervention. issues, a new round ute of limitations prejudice parties to other must be and like- summary judgment motions for by delay, prejudice caused the movant’s limine, in round of motions ly new by the mere fact of intervention. See already 41 that have to those addition Clinton, point at 1251. But the 255 F.3d filed. been by the Nation here is not that intervention in de- approach would result Such existing require would more work severely lay expense, which would That in itself did not concern the parties. ac- parties who have been prejudice court, which said that it would district past trial these tively proceeding toward granted have a motion to intervene gladly years. four-plus Rather, if it had been made earlier. at Aplt.App., Vol. 5 927-28. work court’s reference to the need this original that “the Nation concedes The why require intervention would explained if ... will suffer some discomfort parties delay a substantial before the case could granted.” Aplt. Br. at 20. intervention is (intervention proper trial. id. go to Cfi gist of the disputed And it has not scheduling when “no order been is- ha[d] about what district court’s observations sued, set, trial and no cut-off date no date done before trial would have needed set”). And that last-minute for motions intervention. permitted had the court delay prejudice prejudice would create — event, amply observations are those that would not have resulted from an earli- example, the record. For supported delay in Perhaps er intervention. a short proposed com- prepare for Nation’s trial could be accommodated without much claim, discovery nuisance mon-law But the of more than of burden. the Na- necessary regarding have been days anticipated by the district court IRW; ownership in the tion’s of resources something would be else. the start With subject to the claims could be and because date set for less than three weeks from the limitations, that issue would a statute of intervene, motion to date of the Nation’s Further, investigated. need to be also parties necessarily already had ar- it would defend Tyson indicated ranged their schedules and the schedules by arguing Nation’s claim against the example, witnesses. For the nu- their responsible pres- Nation was for the (the attorneys record shows that merous IRW, pollutants certain in the thus ence of hearing on the motion to discovery. raising requiring another issue attorneys the six the State had also damages claims would CERCLA represented defendants were 18 attor- require discovery additional because the firms) neys from nine would have removed (in Ty- granting district court had ruled their calendars for obligations other damages son’s motion to dismiss the claims 19) the next several months. And at the hear- under Rule under Tyson represented that ing, awarded to the counsel for CERCLA would need to be cleared their of witnesses have intervene. The Cherokee may “[d]ozens Nation here, ready bring some of them are separate schedule and claims lawsuit go. have moved to Tulsa set wishes.” ApltApp., [and] We Vol. 5 at 928. ” up ApltApp., war rooms.... Vol. 5 at The Nation’s opening appeal brief on argues prejudice, only but tersely. The argue specific The State entire discussion of the exaggerated has the burden of de- this case consists of following para- trial, laying Tyson graph: out that pointing requested long
had a continuance not be- Practically, the Cherokee Nation *14 fore the Nation moved to intervene. To be adequate have no alternative the inter- sure, Tyson had filed such a motion on vention is denied. If this cаses contin- 30; requested only June but it an indefi- ues the Cherokee may while it postponement,” nite “brief Def.’s Mot. for legally not be party, may bound as a find 14, May of Scheduling Modification 2009 itself unable to prosecute its claims 3, & Br. in at Integrated Supp. Order against [Tyson]. Since both the State Foods, Inc., Tyson No. 05-cv-329-GKF and the bring Nation must their claims (PJC) (N.D. 2009). Okla. June And damages for collectively against [Tyson], Tyson’s motion reads less like request [1] Nation’s claims well be prac- plea rulings for continuance than a for on tically by judicata barred res if the State (for pending summary numerous motions of Oklahoma is unsuccessful its case judgment expert and the exclusion of testi- injunctive currently pending relief mony) that trial impact preparation. would before the District Court and barred The of the thrust motion was re-alleging from its upon claims based needed to be able to plan efficiently the same facts. [2] In addition, a loss by trial, the same interest raised the State of Oklahoma the District delay that opposing the would result from Court could well appeals regard- lead to the Nation’s intervention. issues, ing multiple including the issue of any whether the Cherokee Nation has properly The district court could decide rights to the waters of the Illinois River prejudice that the sig- would be By Watershed. function of the District Dukakis, nificant. See Culbreath 630 Court’s denial of the Cherokee Nation’s (1st Cir.1980) (“The F.2d purpose of motion to the Nation would requirement application the basic that the input have no into how this Court decid- timely prevent to intervene be is to last issues, except perhaps ed those an disruption painstaking by minute work amicus. court.”). (The parties impact and the similar, Aplt. Br. at 21. on the State could be but the State clearly thought advantages that the of be- As we understand the Nation’s first ing pursue damages able to claims at point practical-bar argument —its —it outweighed delay.) the trial the costs of concerned that if the loses at the relief, bench equitable trial on the State Prejudice to the Movant by judicata pur- could be barred res from prejudice third to the mov- suing damages claims in a later suit and factor — ant denying join intervention —also therefore could not the Nation such weighed in favor denial. As the district a suit. In our view this concern was not preju- adequately presented court said: “The Nation will not be to the district court. judicata diced in the sеnse that its claims will not Res is not mentioned in the Na- impaired by opening reply be the denial of its motion to tion’s briefs submitted Two such Nation to intervene. ting mo- support of its court to the district only might references be that the de- And the circumstances here tion to intervene. the mo- hearing on the doctrine at have ad- intervention would lay caused naturally they would (1) tion are so brief interest public effects on the verse (and may have been well be understood pollution by Ty- injunction against prompt intended) possibility to refer operation on the efficient son and barred itself would be (with impacts on negative district Tele-Commc’ns, Inc. v. See doctrine.2 cases). litigants in other (10th Comm’r, Cir. 104 F.3d potentially to the first ad- respect With 1997) court will (“Generally, appellate any impact, the decided verse for the first consider an issue raised injunction event, prompt benefit from possi- appeal.”). time on desirability jointly than speculative is more bility outweighed consistently stated has real. The Nation claims. trying injunction efforts to rely that it would State’s would not nec- Although the district court Why, against Tyson. prove the claims by the assess- essarily be bound State’s *15 then, expect to be able to would the Nation interest, the court had public ment of the if damages trial the State prevail in a injunction already preliminary denied trial a favorable result cannot obtain rely public on this interest and it did not (We further note that equitable issues? give denying intervention. We therefore sought to intervene the Nation never weight no to this consideration. issues.) just equitable trial on the district impact for the adverse As argument prejudice The Nation’s other lawsuits, litigants in other court and on in the rights no Its IRW fares better. have been neces- continuance that would by the State’s lawsuit cannot be affected sary to the Nation’s intervention allow And to the extent party. it is not also a havoc on the court’s could have wreaked rights if those that it wishes to be heard however, the court did Again, calendar. issue, appellate somehow become denying inter- rely prejudice not on this per- as an amicus would seem participation be- (although Tyson vention raised both fectly adequate. have appeal). low and on We therefore 4. Unusual Circumstances factors analysis confined our to the three customarily focus in deter- on which courts unusual Finally, we consider whether of a motion to intervene. permit- mining timeliness argue against for or circumstances Later, Attorney judicata by Apll.App., Vol. 5 at 877. 2. The first reference res Attorney came in the follow- General was even more abbreviated: Nation's General ing Prejudice applicant we’ve talked comment: to the time, about, lawsuit, money, just it's also the it's not bring CERCLA We could a new judicata, bringing preclusion, the issue res problem, we believe that Your Honor. over, starting sovereign, all in another join State of Okla- we would have to any finding. existence of unusual circumstances. pursuant your Honor’s homa obviously Tyson attorney Id. at 905. The They immunity. We would have to do have suggesting already thought were things been that these comments all of that have these Honor, also, His that the Nation itself could be barred. Your done in this lawsuit here, might response depending happens we was: on what against a judicata preclusion does not run very Issue well face the real issues of res nonparty, just complete red her- Depending upon so that’s preclusion. what or issue ring. happens in this lawsuit it to the State's case very lawsuit. Id. at 926. well affect later Summary Clinton, Utah Ass’n Cntys. v. 255 F.3d (10th Cir.2001) (“The require- light of the record before the district ment of timeliness is not a tool of retribu- delay, undue prejudice to punish tion to tardy would-be interve- parties, prejudice nor, but guard rather a against prejudicing the court did not abuse its discretion in the original parties by a apply failure to denying intervention.
sooner.”). III. CONCLUSION case, In this the district court held that We AFFIRM the denial of the Nation’s a “necessary party,” howev- motion to intervene. er, just later, over a month it denied the Nation’s motion to intervene untimely. TACHA, Judge, Circuit dissenting: view, In my the Nation did undu- 19(a) I respectfully dissent. Rule ly in moving nor would the 24(a)(2) Rule “are intended to mirror each timing of its intervention cause other.” Oneida Indian Nation v. Madi- to the existing parties outweighs which (2d Cnty., son Cir.2010); 605 F.3d prejudice that would be caused its ex- see also Fed.R.Civ.P. 1966 Amendment clusion from this lawsuit. Accordingly, I (“Intervention Note right is here seen to respectfully dissent from the majority’s counterpart kind of to Rule opinion which affirms the denial of the 19(a).... ”). “If a party is not ‘necessary’ Nation’s motion to intervene. 19(a) under Rule then it satisfy cannot To begin, the majority applies the in *16 test for right intervention as of under Rule correct standard of review. Although we 24(a)(2).” Oneida Indian 605 normally review a district ruling cоurt’s (alterations omitted). at F.3d 162 Like- discretion, timeliness for an abuse of
wise, 24(a)(2) an applicant under Rule “is Coal, see, e.g., Cntys. Ariz./N.M. [generally] of entitled to intervene in an ac- for Stable Interior, Econ. Growth v. Dep’t tion position when his comparable is to a of (10th 837, Cir.1996), 100 F.3d 840 when a 19(a)[ [necessary party] under Rule ].” district premised court’s decision is on an Fed.R.Civ.P. 1966 Amendment Note. standard, improper legal it is not entitled course, Of even if a party is deemed to deference. See Kretzinger v. First “necessary” 19(a), under Rule it will not be Bank Waynoka, 103 F.3d 946 of permitted 24(a)(2) to intervene under Rule (10th Cir.1996) (“[W]hen a lower court’s untimely. its motion is not an Although findings factual premised are on improper exhaustive list of the circumstances that legal proper standards or on improp ones render a motion to intervene untimely, an erly applied, they are not entitled to the applicant’s motion generally untimely is if: protection clearly erroneous stan (1) applicant the has delayed unduly in dard, review.”). subject but are to de novo bringing intervene, its motion to see 7C majority adopts a timeliness test that al., Charles A. Wright et Federal Practice applicant’s delay measures the (3d from thе § & Procedure at 539-40 ed. 2007) (“When time it longer reasonably could no believe applicant appears the its interests adequately represented were have been litigation aware of the but has delayed existing party. court, an unduly intervene, The district seeking to however, Rather, courts did generally apply have not this test. been reluctant intervention.”); allow or it held that timing “[t]he of defendants have ade applicant’s quately intervention will un- cause demonstrated that the Cherokee due existing parties, see Nation knew its interest in this case of reasonably believed never have litigation.” Aplt. outset added). represented adequately interests were (emphasis its at 927-28 V App. Vol. not, ... in con- had did because “[t]he the State the district Because the Nation’s recovery past, present, the timeliness sidering not into account Maj. take the Nation.” response costs of motion future reasonably have words, majority the Nation could whether In other at 20-21. rep- adequately 24(a)(2) were interests its believed Rule applicant an under holds that it did existing party, by an resented damages cannot seeking who is timeliness. test correct apply the adequately are its interests believe be reviewed Therefore, decision should existing party unless an by an represented an abuse of dis- than for novo rather de damages on seeks existing party explicitly cretion. applicant. behalf of majority’s Next, agree I while nar- so simply not construed The rule timeliness, I cannot newly adopted test for Indeed, representation rowly. “[t]he that test. As application in its concur under adequacy question comes into whose holds, when assess correctly majority 24(a)(2) confined to formal is not ] [Rule intervene of a motion to timeliness ing the by a provided like representation 24(a)(2), applicant’s under Rule beneficiary representa- or a for his trustee measured from the motion is bringing for a member of in a class action tive longer no applicant could time the 24, 1966 Amend- the class.” Fed.R.Civ.P. were ade its interests reasonably believe Rather, so far as gone have ment Note. we existing party.1 an quately represented representation “when presume adequate Corp., 64 See Reich ABC/York-Estes and an exist- applicant intervention Cir.1995) (7th (“[Applicants] 316, 322 F.3d objective ultimate have the same ing рarty employer was their reasonably believed Clinton, 255 F.3d litigation.” in the interests.”) (emphasis their representing little doubt that There can F.3d added); Espy, 18 Club v. Sierra and the objectives of the State ultimate Cir.1994) (“[T]he (5th legiti movants *17 respect with congruent were Nation the Forest Service believed that mately to re- 'they both CERCLA claims'— plan its sales would defend timber Tyson monetary damages from cover added) omit (quotations (emphasis ning.”) repair the compensate for and order to Co., 672 F.2d ted); Elec. Hill v. W. to the IRW. allegedly it caused damage Cir.1982) (“[T]he (4th critical issue 386 that even if the majority also holds The whether the timeliness is respect with reasonably believed its Nation could have to intervene intervenor moved proposed by represented adequately interests were that the interests soon as it became clear initially was when lawsuit the State the would no members the unnamed class filed, delay with a charged it “can still be named class by the longer protected be Tyson the time year,” almost a from added). With (emphasis representatives.”) Maj. at 1235. I its Rule 19 motion. claims, filed damages respect to the CERCLA view, my In at the time disagree. the Nation majority concludes rеasonably longer no confusingly when the Nation could majority states Although represent- join adequately circuits that measure “we the other were believeits interests was on notice delay ("The when movant could Maj. ed. See at 1233 by protected may not be interests that its thought reasonably that the state have never case,” (em- Maj. already at 1232 party in the in re- representing Nation’s interests was added), majority’s application of phasis damages.”). covering its delay from correctly measures this standard
1241 motion, Rule 19 the Nation could filed later disagreement between the co-trus- reasonably have tees, believed its were interests disagreement would have to adequately represented because it could be by resolved litigation successive be- have believed the State trustees, tween the but could in no pursue be allowed CERCLA way affect liability of the responsible damages individually, and that the State parties. or and Nation could jointly apportion then Thus, Id. until the district court resolved damages through agreement those or in Tyson’s 19 July 22, 2009, Rule motion on subsequent litigation. have, reliance on Coeur resolving Tyson’s motion, Rule 19 II, D’Alene reasonably believed that district court concluded that only “the adequately State could represent its inter- way to compensate feasible the co-trustees est in my view, this lawsuit.2 In the Na- and avoid a recovery unjust double or en- delay tion’s should measured from that expense richment one trustee at the of date. another is to award in the ratio Next, I agree cannot majority’s of actual percentage management and assessment prejudice that the Na- control that by exercised each of the tion’s intervention would Tyson. cause co-trustees,” various and that it could prejudice “The prong of the in- timeliness “make no determination of the ratio or quiry measures caused percentage management of actual and con- intervenor’s by the intervention —not trol exercised in the Na- [Nation] Clinton, itself.” 255 F.3d at (quota- 1251 tion’s absence.” Oklahoma v. omitted). tions In its discussion of the Foods, Inc., 258 F.R.D. 480 prejudice Tyson would suffer if the Nation (N.D.Okla.2009). point, For this the dis- permitted were the majority trict court relied on Coeur D’Alene Tribe potential first cites the need for additional Inc., (D.Ida- v. F.Supp.2d Asarco discovery additional motions 2003) (“Coeur ”). ho I D’Alene That deci- the Nation’s claims. The fact that inter- sion, however, had been subsequently re- vention may “double the work load” or considered and reversed judge who case, however, “add issues” to a prod- is a issued it. See United States Asarco uct “of intervention itself rather than the Inc., (D.Idaho 471 F.Supp.2d timing of the motion to intervene.” Id. 2005) (“Coeur II”) (“The D’Alene Court majority further notes that ”). because its trusteeship ruling revises ... In- the trial date deed, was less than three II, in Coeur D’Alene weeks Judge Lodge *18 away at sought the time the Nation to held: intervene, its intervention and the trial The language of the statute dictates that delay it would cause significantly would a acting individually co-trustee or collec- disrupt Tyson’s attorneys’ and tively witnesses’ with the other may go co-trustees sure, Tyson schedules. To would responsible party parties after suffer or for full some added cost a delay amount of the because of trial damage, any less already only amount that has three paid as a weeks before trial was set to been however, of a begin; Tyson result settlement to another partly trustee is at least responsible aby party. responsible If there is a delay for this belated and the exрress no view reasonably I on whether district believed that the district court properly Tyson's adopt position court resolved Rule 19 mo- would of Coeur D'Alene II Rather, only point position tion. I out that until that rather than the of Coeur I D’Alene resolved, motion was the Nation could have the CERCLAtrustee issue. bring to its Tyson waited years that Tyson three Although cost. added attendant defense, sig- expended the State answer, it Rule 19 in its Rule 19 defense raised its develop its And, money to time and it. pursue nificant years three waited over the district claims. damages have When the Nation because its Rule 19 Tyson on adequately rep- in favor ruled interests were its believed motion, it claims were dismissed. court deemed all of those the district until resented delay permitted Tyson’s own Nation is not If “necessary” party, a pursue a causal have was and Nation will Rule 19 motion its bringing Nation’s motion dollars dam- of the of millions of timing factor in hundreds own, view, Tyson cannot its my initially sought on In the State ages to intervene. timing of the Na- Neither lawsuit. subsequent about the in a complain together now at Tyson is when a subse- to intervene believes tion’s nor Nation motion the State timing. for possi- a responsible suit is realistic partly cooperative least quent (Attor- not be Furthermore, should reward- Tyson ApltApp. Vol. V 875 bility. See de- its Rule 19 pursue waiting to “If explaining, ed for Nation ney of the General late arguably too it would be in this fense until to intervene not allowed we are to intervene. to, for the file lawsuit, point, Nation have at some we will join try to will have to a lawsuit. We new Tyson’s sympathize I cannot also immunity. who also has [ ] the State that would prejudice of the protestations it at they do politically or not can Whether long delay not trial when by a be caused not we time is an issue. Whether intervene, Ty- before the issue.”); very it is a real can to do afford trial. It to continue son sought at 31 Br. of State of Oklahoma see also for a motion contin- Tyson’s irrelevant (“Because joined sovereign can be neither a request for like less “read[ ] uance will, need again both would against its rulings on plea than continuance sovereignty. their concurrently to waive fact Maj. at 1237. The motions.” pending is often dif- priorities Such coordination of 30, 2009, Tyson that on June remains [Tyson] with ficult, potentially providing argued trial and even delay the sought to from unjust escape an unwarranted date triаl short continuance “[a] response liability and/or Defs any party.” would not costs.”). Thus, Nation is excluded if the May Modification Mot. for lawsuit, potentially will this the State Integrated Br. & Scheduling Order of time amount significant have wasted Foods, Inc., No. 05-ev- Supp. at com- money spent developing these 2009) (N.D. June 329-GKF-PJC Okla. view, my In the loss claims. plex damages added). view, my Tyson’s (emphasis rearrange by having to would incur and its claim a continuance request for pa- attorneys’ and schedules its witnesses’ preju- a trial 30 that June time and comparison the loss of les in undermines greatly dice potentially suffer money the State will trial later that months only claim two action. is excluded from this prejudice. it extreme delay would cause *19 unduly sum, did Nation any un- discussing whether Finally, lawsuit. seeking to this intervene against for or circumstances counsel usual through- Rather, quite prudently it acted intervene, ma- the Nation to allowing when only sought to intervene out and unusual circum- one obvious jority ignores that its longer no believe loss the State will significant stance —the represented adequately were interests is incur if Nation excluded potentially Furthermore, prej- because than State. During the more lawsuit. from this potentially udice the State will suffer signifi-
Nation is excluded from this case is
cantly greater than prejudice Tyson
will suffer if the permitted I would reverse the district decision
court’s and allow the Nation to
intervene so that all relating claims
Tyson’s alleged pollution of the can IRW together
be tried in one For lawsuit. reasons, I respectfully
these dissent. Oldenkamp,
Ross OLDENKAMP and Laura iffs-Appellant
Plaint
s/Cross-Appellees,
UNITED AMERICAN INSURANCE
COMPANY, Defendant-Appel
lee/Cross-Appellant. 09-5032,
Nos. 09-5039.
United Appeals, States Court of
Tenth Circuit.
Sept.