United States District Court, D. Montana, Helena Division
L. CHRISTENSEN, CHIEF JUDGE UNITED STATES DISTRICT COURT.
Corporation and Talen (together Defendants) move the Court to
join the United States as a necessary party under Federal
Rule of Civil Procedure 19. (Doc. 192, 197). The State of
Montana opposes this motion. (Doc. 198). The Court has read
the parties briefs and conducted a lengthy hearing on
February 8, 2019.
reaching its decision, the Court has an interest not only in
arriving at the right conclusion as a matter of law, but also
in guiding this litigation efficiently. See Fed. R.
Civ. P. 1. To the extent that the United States has an
interest in this case, the Court wants that interest
developed sooner rather than later. For the reasons explained
more fully below, the Court will grant the motion. Because
the parties are familiar with the facts of this case, they
will only be stated as necessary to understand this
Rule 19(a)(1), a party is necessary, and joinder is required,
if: (1) "in that [party's] absence, the court cannot
accord complete relief among existing parties"; or (2) a
party has an interest in the action and resolving the action
in its absence may as a practical matter impair or impede
that party's ability to protect that interest; or (3) if
a party has an interest in the action and resolving the
action in its absence creates a substantial risk that failure
to join the party may leave an existing party subject to
inconsistent obligations because of that interest.
Fed.R.Civ.P. 19(a)(1); Salt River Project Agr. Imp. &
Power Dist. v. Lee, 672 F.3d 1176, 1179 (9th Cir. 2012).
Rule 19 contemplates "entertaining the broadest possible
scope of action consistent with fairness to the parties;
joinder of claims, parties and remedies is strongly
encouraged." United Mine Workers of Am. v.
Gibbs, 383 U.S. 715, 724 n.10 (1966). "Further, a
court must protect the interests of the parties not before it
to avoid possible prejudicial effect; failure of a court to
protect those interests by joinder may amount to a violation
of due process." R. J. Williams Co. v. Fort Belknap
Hous. Auth., 92 F.R.D. 17, 21 (D. Mont. 1981).
argue that joinder of the United States is necessary under
each of Rule 19's disjunctive requirements. Because this
Court agrees that the United States has an interest in the
litigation that runs a substantial risk of subjecting
Defendants to incurring double or otherwise inconsistent
obligations, the Court will not address Defendants' other
The United States Has a Legally Protected Interest in the
requires that a purported necessary party have a legally
protected interest in the pending litigation. Cachil Dehe
Band of Wintun Indians of the Colusa Indian Cmty. v.
California, 547 F.3d 962, 970 (9th Cir. 2008).
"This interest must be more than a financial stake, and
more than speculation about a future event." Makah
Indian Tribe v. Verity, 910 F.2d 555, 558 (9th Cir.
1990) (internal citations omitted). However, the interest
itself need "merely be a 'claim'-that is,
'[j]ust adjudication of claims requires that courts
protect a party's right to be heard and to participate in
adjudication of a claimed interest, even if the dispute is
ultimately resolved to the detriment of that
party.'" White v. Univ. of Calif, 765 F.3d
1010, 1029-30 (9th Cir. 2014) (quoting Shermoen v. United
States, 982 F.2d 1312, 1317 (9th Cir. 1992)). A legally
sufficient claim is one that is "nonfrivolous."
Id. at 1030.
Makah Indian Tribe, the Ninth Circuit found that a
court's decision that would effectively reallocate a
fixed or limited resource required the participation of
absent neighboring tribes. 910 F.2d at 558. There, the Makah
Tribe challenged "federal regulation allocating] the
ocean harvest of migrating Columbia River salmon" where
the regulation set lower harvest levels than those protected
by treaty. Id. at 556. The Makah Tribe, one of
twenty-three tribes covered by the treaty, challenged that
the quotas imposed by regulation were unfair and violated
their treaty rights. Id. at 557. Because the
district court determined that the tribe was primarily
seeking to reallocate harvest quotas, the district court sua
sponte determined that the absent tribes were
"necessary" parties and dismissed the suit.
Id. The Tribe appealed, arguing that they only
sought to enforce their own treaty rights and to increase the
overall harvest quotas, and therefore their claims would not
negatively impact any other tribe's interest.
Id. However, the Ninth Circuit sided with the lower
court. Id. at 559. The court reasoned that because
the subject matter of the litigation was the allocation of
salmon-which is a limited resource-any decision with regard
to the Tribe would necessarily reduce the salmon available to
other tribes. Id. Further, the court determined that
those interests were not adequately protected by the federal
government to the extent "those interests conflict among
Defendants argue that the United States has an interest in
the outcome of this litigation because it asserts ownership
and has charged rent to Northwestern for its use of land that
may be determined to be owned by the State in the course of
litigation. Defendants argue that the United States has
asserted this interest in multiple ways, including
participating as an amicus before the United States Supreme
State of Montana asserts that the only interest the United
States has expressed in this litigation is the interest in
advocating for a particular legal test and observes that the
United States has not sought to enter this litigation as a
party at any time during the now-sixteen years that this case
has been pending. Further, the State contends that it does
not seek conflicting title to any federal land, and the only
question is whether various segments of the river were
navigable at statehood. (Doc. 204 at 10 13 n.5 (stating that
because the sole issue during this stage of litigation is
whether certain segments of land passed to the State of
Montana at statehood under the equal footing doctrine
"there is no dispute between Montana and the United
States[.]").) And, because the State plans to cooperate
with the federal government in answering this question, it
posits that there is no conflict of interest that would
require the United States to join in the fray.
final argument is not persuasive. While it is true that there
is no dispute over the proper legal standard, nor is there
dispute over the outcome for purpose of title in the event
certain segments of waters are determined to be navigable,
the question of navigability is a question of fact and the
consequences of that question will determine which of two
sovereigns may charge rent to Northwestern for its use,
enjoyment, and occupancy of that land. Here, as in Makah
Indian Tribe, the United States has an interest in this
litigation because the result will have the practical effect
of allocating a fixed resource-title to land- between two
the Ninth Circuit cautions that a "mere financial
stake" in the outcome of litigation is not a sufficient
interest to render a particular party "necessary,"
the interest here is greater-the United States has an
interest in the rent that follows as a right of holding title
to land, accompanied by the right to issue permits ...