UNITED STATES OF AMERICA v. STATE OF MICHIGAN, and its agents; BAY MILLS INDIAN COMMUNITY; SAULT STE. MARIE TRIBE OF CHIPPEWA INDIANS; GRAND TRAVERSE BAND OF OTTAWA AND CHIPPEWA INDIANS; LITTLE RIVER BAND OF OTTAWA INDIANS; LITTLE TRAVERSE BAY BANDS OF ODAWA INDIANS; COALITION TO PROTECT MICHIGAN RESOURCES, fka Michigan Fisheries Resources Conservation Coalition
Nos. 23-1944/23-1971
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Mar 11, 2025
25a0139n.06
NOT RECOMMENDED FOR PUBLICATION
Before: GIBBONS, McKEAGUE, and STRANCH, Circuit Judges.
OPINION
JULIA SMITH GIBBONS, Circuit Judge. In December 2022, the United States, the State of Michigan, and the Bay Mills Indian Community, the Grand Traverse Band of Ottawa and Chippewa Indians, the Little Traverse Bay Bands of Odawa Indians, and the Little River Band of Ottawa Indians (collectively, the “Stipulating Parties“) filed the proposed 2023 Great Lakes Fishing Decree (the “2023 Decree“). The 2023 Decree reflects the Stipulating Parties’ effort to
Amicus curiae, the Coalition to Protect Michigan Resources (the “Coalition“)—a nonprofit organization representing Michigan-based recreational fishing and conservancy groups—objected to the 2023 Decree‘s entry. Over the Coalition‘s objection, the district court entered the 2023 Decree. United States v. Michigan, 2023 WL 5444315, at *70 (W.D. Mich. Aug. 24, 2023). The district court concluded that the 2023 Decree preserves tribal treaty rights and conserves the fishery resource. Id. The Coalition now challenges the 2023 Decree‘s entry on appeal. However, this court lacks jurisdiction over this appeal because the Coalition only appears as amicus curiae and was never granted party status through intervention.
I.
In September 2019, the parties, along with several amici, began negotiating a successor decree to the preceding 2000 Decree. In December 2022, after more than three years of negotiations, the Stipulating Parties filed the proposed 2023 Decree. The Coalition filed eleven objections to the entry of the proposed 2023 Decree. The district court held a two-day hearing to conduct oral argument on each objection. At the conclusion of the hearing, the district court allowed the Coalition to file proposed findings of fact and conclusions of law with respect to any of the issues raised in its objections.
In August 2023, following its review of the Coalition‘s objections and proposed findings, the court overruled its objections to the 2023 Decree. Michigan, 2023 WL 5444315, at *70. It found that the 2023 Decree “represents a medium between [the Coalition] and the Sault‘s objections, and it protects the resource while appreciating the Treaty right.” Id. at *56. With respect to the Coalition‘s specific objections, the district court found that: (i) the 2023 Decree‘s
Although the district court acknowledged that the Coalition “does not possess any appellate rights,” it seemingly granted the Coalition the right to appeal the entry of the 2023 Decree based on the objections the Coalition had raised before it. Michigan, 2023 WL 5444315, at *69. In doing so, the district court purportedly relied on language from one of this court‘s prior opinions in this case which explained that, “if the successor decree is ultimately unlawful or shows that the government failed to represent the Coalition‘s interests in biodiversity and conservation, then the Coalition would have good reason to request intervention ‘for the limited purpose of appeal.‘” United States v. Michigan, 68 F.4th 1021, 1027 (6th Cir. 2023) (emphasis added) (citation omitted).
The Coalition filed a notice of appeal, No. 23-1944, and the United States filed a notice of cross appeal on the issue of the Coalition‘s right to appeal, No. 23-1971.
II.
Generally, only parties to an action have standing to appeal. Marino v. Ortiz, 484 U.S. 301, 304 (1988). A non-party may become a party for purposes of appealing an adverse final judgment by intervening in the action. Stringfellow v. Concerned Neighbors in Action, 480 U.S. 370, 375 (1987). Under
With respect to permissive intervention, a proposed intervenor must establish that the motion for intervention is timely and must allege “a claim or defense that shares with the main action a common question of law or fact.” Buck v. Gordon, 959 F.3d 219, 223 (6th Cir. 2020);
III.
The Coalition failed to file a motion to intervene in the first instance. The Coalition did not attempt to satisfy the standards for either form of intervention. Consistent with Supreme Court precedent, a non-party petitioner who fails to intervene has no right to an appeal. The Coalition is not an exception to the rule. In Bender v. Williamsport Area School District, 475 U.S. 534 (1986), a group of high school students brought First Amendment claims against a school district for
The Supreme Court was similarly explicit in Marino v. Ortiz. There, a group of police officers sought to challenge a consent decree approving an agreement settling a Title VII lawsuit against the City of New York. 484 U.S. at 302. The court held that the police officers lacked standing to prosecute the appeal and dismissed the appeal for lack of appellate jurisdiction. Id. at 1154. According to the Second Circuit, the police officer‘s “predicament results from their steadfast refusal to comply with the requirements for intervention set forth in
The Coalition argues that its treatment in this litigation entitles it to appellate rights. The Coalition relies heavily on this court‘s holding in City of Cleveland v. Ohio, in which we stated that “appeals may be taken by non-parties who were treated on all sides as de facto parties but who never formally intervened.” 508 F.3d at 837. But the Coalition cannot credibly argue that it has been treated as if it were a party when the Coalition, and its members, have repeatedly sought to intervene, unsuccessfully, in eight motions in the last five decades. See United States v. Michigan, 68 F.4th 1021, 1024 (6th Cir. 2023) (noting seven prior motions to intervene and affirming the denial of one more). Moreover, City of Cleveland v. Ohio itself provides no support for the Coalition‘s argument that it has been treated as a de facto party. The Coalition removes the statement in City of Cleveland v. Ohio from its context.
In City of Cleveland, the City challenged the Federal Highway Administration‘s (“FHWA“) withdrawal of federal funds from one of the City‘s public works projects after the City included a local hiring preference provision as one of its bid specifications and in the contract with a successful bidder. 508 F.3d at 831. The State of Ohio and the Ohio Department of Transportation (“ODOT“), tasked with ensuring that the City complied with federal contracting requirements, subsequently filed a third-party complaint against the FHWA, asserting that ODOT had notified the City that the local hiring provision conflicted with federal law. Id. at 834. The City moved to intervene in the third-party action “to alleviate any concern that might exist to [its] appellate standing,” but the district court denied that motion. Id. at 835. Still, we recognized the City‘s standing to appeal, noting that, the City of Cleveland “actually was a party to the case, and
Unlike City of Cleveland, the Coalition “was never a party to the action at all.” Id. As already explained, the Coalition has only held status as amicus curiae. Although the district court recognized that the Coalition has been involved since 2007, and that its member organizations have been amici since the 1980s, it concluded that the Coalition may only “participate in the case as a traditional amicus ... [with] a very narrow, non-adversarial role that does not rise to the level of ‘the full litigating status of a named party or a real party in interest.‘” DE 1875, Order Regarding Coalition‘s Mot., Page ID 2144 (quoting United States v. Michigan, 940 F.2d 143, 165 (6th Cir. 1991)). According to the district court, the Coalition, as traditional amicus, “may not ‘initiat[e] legal proceedings, fil[e] pleadings, or otherwise participat[e] and assum[e] control of the controversy in a totally adversarial fashion.‘” Id. (alteration in original) (citation omitted). Unlike in City of Cleveland, where the City‘s actions were the basis for the entire suit, the Coalition has “never been given more than amic[us] status” throughout the decades-long history of this case. DE 1985, Order Denying Mot. to Intervene, Page ID 11666. Therefore, City of Cleveland is inapposite. Because the Coalition has never held any other status except that of a traditional amicus, the traditional rule—that a non-party petitioner who fails to formally intervene has no right to an appeal—applies.
The Coalition also relies on Devlin v. Scardelletti, 536 U.S. 1 (2002) to support its argument that it was a de facto party. In Devlin, the Supreme Court recognized that nonnamed members of a mandatory
The Coalition further argues that its de facto role “went significantly beyond that ‘non-adversarial’ role of amicus curiae” because the court “treated the Coalition as a party, at least for the purposes of objecting to the 2023 Decree.” CA6, R. 35, Coalition‘s Reply Br., at 5. But this is the same argument that the Second Circuit—and later affirmed by the Supreme Court—rejected in Hispanic Society of New York City Police Department Inc. v. New York City Police Department, 806 F.2d 1147, 1153 (2d Cir. 1986), aff‘d sub nom. Marino v. Ortiz, 484 U.S. 301 (1988). Like the Coalition, the would-be intervenors there, a group of police officers, “were never parties in the district court in any capacity.” Id. Before the district court entered the decree, the police officers had filed written objections and argued them before the district court during a scheduled oral hearing. See id. at 1153. The Court of Appeals rejected the police officers’ argument, concluding that having filed written objections and argued them at a hearing does not confer party status on the police officers. Id. at 1153. In its decision, the Supreme Court affirmed the Court of Appeal‘s judgment, holding that “the better practice is for such a nonparty to seek intervention for purposes
Our court has spoken clearly about the role of an amicus curiae and the need for an amicus to file a formal motion for intervention under
IV.
For this court to have jurisdiction to hear the Coalition‘s appeal, the Coalition must have properly become a party to this suit. The rule that only parties may appeal adverse judgments is
Accordingly, we dismiss the Coalition‘s appeal for lack of appellate jurisdiction and dismiss as moot the United States‘s cross-appeal.