RECOMMENDED FOR FULL-TEXT PUBLICATION
`Pursuant to Sixth Circuit Rule 206
`File Name: 05a0398p.06
`UNITED STATES COURT OF APPEALS
`FOR THE SIXTH CIRCUIT
`_________________
`
`No. 04-1864
`
`UNITED STATES OF AMERICA,
`
`Plaintiff-Appellee,
`
`BAY MILLS INDIAN COMMUNITY; SAULT STE. MARIE
`TRIBE OF CHIPPEWA INDIANS; GRAND TRAVERSE
`BAND OF OTTAWA & CHIPPEWA INDIANS; LITTLE
`RIVER BAND OF OTTAWA INDIANS; LITTLE
`TRAVERSE BAY BAND OF ODAWA INDIANS,
`Plaintiffs/
`Intervenors-Appellees,
`
`v.
`
`STATE OF MICHIGAN, et al.,
`
`Defendants-Appellees,
`
`MICHIGAN FISHERIES RESOURCES CONSERVATION
`COALITION; STUART CHENEY; ROBERT ANDRUS;
`WALLOON LAKE TRUST AND CONSERVANCY,
`Proposed Defendants-
`Intervenors-Appellants.
`
`X---->,--------------------N
`
`Appeal from the United States District Court
`for the Western District of Michigan at Kalamazoo.
`No. 73-00026—Richard A. Enslen, District Judge.
`
`Argued: April 18, 2005
`Decided and Filed: August 24, 2005*
`Before: BOGGS, Chief Judge; RYAN and ROGERS, Circuit Judges.
`
`*This decision was originally issued as an “unpublished decision” filed on August 24, 2005. On September 12,
`2005, the court designated the opinion as one recommended for full-text publication.
`
`1
`
`

`
`No. 04-1864
`
`United States, et al. v. State of Michigan, et al.
`
`Page 2
`
`_________________
`COUNSEL
`ARGUED: Stephen O. Schultz, FOSTER, SWIFT, COLLINS & SMITH, Lansing, Michigan, for
`Appellants. Kathryn E. Kovacs, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
`D.C., Marc D. Slonim, ZIONTZ, CHESTNUT, VARNELL, BERLEY & SLOMIN, Seattle,
`Washington, for Appellees. ON BRIEF: Peter R. Albertins, FOSTER, SWIFT, COLLINS &
`SMITH, Lansing, Michigan, for Appellants.
` Kathryn E. Kovacs, UNITED STATES
`DEPARTMENT OF JUSTICE, Washington, D.C., Marc D. Slonim, Brian C. Gruber, ZIONTZ,
`CHESTNUT, VARNELL, BERLEY & SLOMIN, Seattle, Washington, Kathryn L. Tierney, BAY
`MILLS INDIAN COMMUNITY, Brimley, Michigan, Aaron C. Schlehuber, Sault Ste. Marie,
`Michigan, Bruce R. Greene, GREENE, MEYER & McELROY, Boulder, Colorado, John F.
`Petoskey, GRAND TRAVERSE BAND OF OTTAWA & CHIPPEWA INDIANS, Peshawbestown,
`Michigan, William Rastetter, OLSON, BZDOK & HOWARD, Traverse City, Michigan, William
`J. Brooks, Manistee, Michigan, James A. Bransky, Traverse City, Michigan, Allie Greenleaf
`Maldonado, Harbor Springs, Michigan, Marie Shamraj, Christopher D. Dobyns, OFFICE OF THE
`ATTORNEY GENERAL OF MICHIGAN, Lansing, Michigan, for Appellees.
`_________________
`OPINION
`_________________
`RYAN, Circuit Judge. This appeal is the latest episode in a 32-year-old dispute between the
`United States and the State of Michigan regarding the interpretation and enforcement of the 1836
`Treaty of Washington, 7 Stat. 491. The appellants, Michigan Fisheries Resource Conservation
`Coalition (MFRCC), Stuart Cheney, Robert Andrus, and the Walloon Lake Trust and Conservancy,
`comprise a group of proposed intervenors who appeal from the district court’s order denying their
`motion to intervene in the current phase of this case to determine the usufructuary rights of five
`Indian tribes under the Treaty. For the following reasons, we will affirm.
`I.
`This litigation has a lengthy history which is only briefly reviewed here. In 1836, the Ottawa
`and Chippewa Indian Nations and the United States government signed the Treaty of Washington.
`Under the terms of the Treaty, the Indians ceded some of their lands and waters, encompassing large
`portions of what is now the State of Michigan and the Great Lakes, to the United States government
`while reserving certain rights in the ceded territory. Article 13 of the Treaty provides, in part: “The
`Indians stipulate for the right of hunting on the lands ceded, with the other usual privileges of
`occupancy, until the land is required for settlement.” 7 Stat. 491. The interpretation of the latter
`clause, and its application to modern circumstances, are in dispute in this litigation.
`A. The Tribes’ Treaty Right to Fish in the Great Lakes
`The United States brought this lawsuit against the State of Michigan in 1973, on its own
`behalf and on behalf of the Bay Mills Indian Community, “to protect the tribe’s rights to fish in
`certain waters of the Great Lakes” under the Treaty and to enjoin the State of Michigan’s alleged
`interference with those rights. United States v. Michigan, 471 F. Supp. 192, 203 (W.D. Mich. 1979),
`modified in part, 653 F.2d 277 (6th Cir. 1981). Thereafter, the Bay Mills Indian Community and
`the Sault Ste. Marie Tribe of Chippewa Indians successfully moved to intervene as plaintiffs and
`added certain state officials as defendants. Id. at 203-04. The Michigan United Conservation Clubs
`(MUCC), a sportsman’s group, also filed a motion to intervene as a defendant. Id. at 204.
`
`

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`No. 04-1864
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`United States, et al. v. State of Michigan, et al.
`
`Page 3
`
`Pursuant to a motion filed by the plaintiffs, the district court, in a written opinion, bifurcated
`the case into a declaratory phase and a remedial phase. The court planned to consider in the first
`phase “[w]hether the Indians reserved or retained fishing rights in the Great Lakes waters
`purportedly ceded by them under the Treaty of 1836,” and whether the State of Michigan had
`“jurisdiction to regulate the exercise of those rights by treaty tribe members.” The court declared
`that if such rights were found to exist and could be regulated by the State of Michigan, the court
`would proceed to the second phase to determine “which, if any, State regulations may be applied
`to the Indians in the exercise of their reserved rights.”
`In the same opinion, the district court denied MUCC’s motion to intervene, noting that its
`decision was “based largely upon the fact that there will be separate trials as to the declaratory and
`remedial aspects of this case.” The court explained that, although MUCC had an interest in the case,
`it had failed to meet its burden of demonstrating that the State of Michigan would not adequately
`represent its interest with respect to the issues to be decided in the declaratory phase. The court
`permitted MUCC to participate as amicus curiae and noted that MUCC could renew its motion to
`intervene once the status of the Indians’ treaty rights had been decided. On appeal, more than 28
`years ago, this court affirmed, concluding that the record did not indicate that MUCC was
`inadequately represented by the State of Michigan. United States v. Michigan United Conservation
`Clubs, 556 F.2d 583 (6th Cir. 1977) (unpublished disposition).
`At the conclusion of the declaratory phase, the district court found that the Tribes retained
`“the right . . . to fish in the waters of the Great Lakes and connecting waters ceded by the Treaty of
`1836.” United States v. Michigan, 471 F.Supp. at 278. The court also concluded that the Tribes’
`right to fish in the Great Lakes could not be regulated by the State of Michigan except as authorized
`by Congress. Id. at 281. On appeal, this court affirmed in part, holding that “[t]he treaty-guaranteed
`fishing rights preserved to the Indians in the 1836 Treaty . . . continue to the present day as federally
`created and federally protected rights.” United States v. Michigan, 653 F.2d at 278. However, this
`court also held that the State of Michigan could regulate the Tribes’ fishing rights under certain
`circumstances, and remanded the case to the district court for further proceedings. Id. at 279-80.
`Meanwhile, during the pendency of the appeal, the district court permitted the Grand Traverse Band
`of Ottawa and Chippewa Indians to intervene in the case.
`During the ensuing district court proceedings, the parties and amici curiae sought to resolve
`the conflicts between Indian and non-Indian interests regarding the management and allocation of
`the Great Lakes fishery in view of the Tribes’ recognized treaty rights. In 1985, after extensive
`negotiations, the parties reached a settlement regarding the allocation of the Great Lakes fishery and
`signed an agreement for entry of a consent judgment, which was adopted by the district court and
`remained effective for 15 years. In 2000, the parties stipulated to the entry of another consent
`decree, to remain effective until 2020.
`B. The Tribes’ Inland Treaty Rights
`Before 2003, the parties were litigating claims involving only the Indians’ right to fish in the
`Great Lakes, and did not seek any judicial determination regarding the Tribes’ right to hunt and fish
`on inland lands and waters. In 2001, the United States circulated, but did not file, a draft
`supplemental complaint seeking declaratory and injunctive relief with respect to the Tribes’ inland
`treaty rights. On September 17, 2003, the State of Michigan formally launched the current phase
`of the litigation by filing a Motion for Leave to File a Counterclaim against the Tribes. The State
`of Michigan asserted that the purpose of the counterclaim was “to begin the process of determining
`whether any Treaty-reserved usufruct[u]ary rights under the 1836 Treaty of Washington outside of
`the Great Lakes and connecting waters exist.” The counterclaim sought “a declaration that [the
`Tribes] do not retain any off-reservation hunting and/or fishing rights in inland areas under the 1836
`Treaty of Washington, . . . except for [sic] on federal lands, that have never passed out of federal
`
`

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`No. 04-1864
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`United States, et al. v. State of Michigan, et al.
`
`Page 4
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`control and to [sic] which the exercise of those rights is not inconsistent with the purpose for federal
`ownership.” The district court entered an order granting the motion on November 4, 2003, and the
`counterclaim was filed the next day.
`On January 5, 2004, the Tribes filed a joint reply to the State of Michigan’s counterclaim.
`The Tribes elected not to assert sovereign immunity as a defense, but instead, denied that “the Treaty
`Right is limited to federal lands that have never passed out of federal control and on which the
`exercise of the Treaty Right is not inconsistent with the purpose of federal ownership.”
`In anticipation of a status conference scheduled for February 19, 2004, the parties filed a
`Joint Status Report in which they jointly proposed a litigation-management schedule premised on
`a 20-day trial. According to the Report, the parties had agreed that “[d]iscovery and trial in this
`phase of this litigation [would] be limited to the issues raised by Defendants’ counterclaim, the
`Plaintiff-Intervenors’ reply thereto, and the United States[’] Supplemental Complaint.”
`At the status conference, the parties discussed the expected course of the proceedings and
`the witnesses to be called at trial. Because the State of Michigan had not named the United States
`as a counter-defendant, believing it to be immune from suit, counsel for the United States informed
`the court that he would be filing a supplemental complaint so that the issue raised by the State of
`Michigan’s counterclaim would be final and binding on all parties. Counsel for the proposed
`intervenors also participated in the conference and notified the parties of his intent to file a Motion
`to Intervene in the case.
`On February 23, 2004, the district court entered a Case Management Order, mandating,
`among other things, that all motions for joinder of parties and all motions to amend the pleadings
`be filed by April 19, 2004. The United States filed a timely motion for leave to file its supplemental
`complaint. The complaint did not seek to expand the issues raised in the State of Michigan’s
`counterclaim, but merely sought a declaratory judgment that the “Tribes continue to have treaty-
`protected rights to hunt, fish, trap and gather on inland lands and water within the area ceded by the
`1836 Treaty that are not required for settlement within the meaning of the Treaty.” The Tribes
`stipulated to the filing of the United States’ supplemental complaint, and the district court granted
`the motion.
`In order to give counsel for the proposed intervenors an opportunity to review the United
`States’ supplemental complaint, the parties stipulated that the proposed intervenors could delay
`filing their Motion to Intervene until April 26, 2004, one week after the United States was scheduled
`to file its supplemental complaint, and one week after the court’s deadline to file motions for joinder
`of parties. On April 27, 2004, the district court entered an order accepting post hoc the proposed
`intervenors’ tardy Motion to Intervene, stating that “[t]he Stipulation appears just and will not delay
`this litigation.”
`Pursuant to Federal Rule of Civil Procedure 24(c), the proposed intervenors submitted with
`their motion a proposed answer to the United States’ supplemental complaint. The answer requested
`that the court “issue a Declaratory Judgment holding that the . . . Tribes do not have any treaty-
`protected rights to hunt, fish, trap or gather on inland lands and waters within the area covered by
`the 1836 Treaty.” The answer also set forth a number of “affirmative defenses,” which denied that
`the Tribes retained certain usufructuary rights under the Treaty, including the right to remove live
`and dead timber, the right to access lakes with or without public access by crossing private property,
`and the right to hunt on commercial forest lands. The Tribes opposed the Motion to Intervene. The
`State of Michigan did not file any opposition.
`On June 15, 2004, the district court denied the proposed intervenors’ Motion to Intervene
`either permissively or as of right. The court first noted that the motion was filed almost six months
`
`

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`No. 04-1864
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`United States, et al. v. State of Michigan, et al.
`
`Page 5
`
`after the State of Michigan had filed its counterclaim. The court also explained that “the parties and
`the Court established a schedule for discovery and trial premised on the narrow issue of whether the
`[Tribes] have retained usufructuary rights on inland property which has passed out of federal
`control.” The court stated that the proffered answer indicated that the proposed intervention “would
`greatly complicate the suit by requiring adjudication of many proposed Affirmative Defenses,
`including factually intensive decision making as to the regulation of separate usufructuary rights.”
`The court was concerned that the affirmative defenses implicated regulatory issues which would
`require “prolonged discovery.” In view of these circumstances, the court concluded that the motion
`was untimely, and further, that “[t]he interests of the Proposed Intervenors [were] adequately
`represented by Defendants and [would] not be impaired in the absence of intervention.” The
`proposed intervenors appealed.
`
`II.
`Under the Federal Rules of Civil Procedure, there are two avenues by which a non-party can
`intervene in a pending case: Intervention of Right and Permissive Intervention. Intervention of right
`is governed by Rule 24(a), which provides, in pertinent part:
`(a)
`Intervention of Right. Upon timely application anyone shall be
`permitted to intervene in an action: . . . (2) when the applicant claims an interest
`relating to the property or transaction which is the subject of the action and the
`applicant is so situated that the disposition of the action may as a practical matter
`impair or impede the applicant’s ability to protect that interest, unless the applicant’s
`interest is adequately represented by existing parties.
`Fed. R. Civ. P. 24(a).
`We have held that, to intervene as of right under Rule 24(a)(2), a proposed intervenor must
`establish the following four elements: (1) the motion to intervene is timely; (2) the proposed
`intervenor has a substantial legal interest in the subject matter of the case; (3) the proposed
`intervenor’s ability to protect that interest may be impaired in the absence of intervention; and (4)
`the parties already before the court may not adequately represent the proposed intervenor’s interest.
`Grutter v. Bollinger, 188 F.3d 394, 397-98 (6th Cir. 1999). “The proposed intervenor must prove
`each of the four factors; failure to meet one of the criteria will require that the motion to intervene
`be denied.” Grubbs v. Norris, 870 F.2d 343, 345 (6th Cir. 1989). We review a district court’s denial
`of intervention as of right de novo, except for the timeliness element, which is reviewed for an abuse
`of discretion. Grutter, 188 F.3d at 398.
`We first address the question whether the proposed intervenors are adequately represented
`by the State of Michigan because this issue is dispositive of this appeal. Applicants for intervention
`bear the burden of proving that they are inadequately represented by a party to the suit. Meyer
`Goldberg, Inc. v. Goldberg, 717 F.2d 290, 293 (6th Cir. 1983). This burden has been described as
`minimal because it need only be shown “that there is a potential for inadequate representation.”
`Grutter, 188 F.3d at 400. Nevertheless, applicants for intervention must overcome the presumption
`of adequate representation that arises when they share the same ultimate objective as a party to the
`suit. Bradley v. Milliken, 828 F.2d 1186, 1192 (6th Cir. 1987).
`The proposed intervenors insist that the defendants will not adequately represent their
`interests because the state’s “duty is to the broader public” and it “has no duty to defend their
`interests” as private property owners. They contend that experience verifies that the state cannot
`adequately defend private property rights.
`In order to assess whether the proposed intervenors are adequately represented by the State
`of Michigan, it is necessary to identify the claims currently pending before the district court. The
`
`

`
`No. 04-1864
`
`United States, et al. v. State of Michigan, et al.
`
`Page 6
`
`scope of the issues in the current phase of this litigation was defined by the State of Michigan’s
`counterclaim, which merely sought a declaration that, with the exception of certain federal lands that
`have never passed out of federal control, the Tribes’ treaty-reserved rights to hunt and fish outside
`the Great Lakes have ceased to exist. Neither the Tribes’ answer to this counterclaim nor the United
`States’ supplemental complaint expanded on these issues. Further, the parties’ Joint Status Report
`includes an agreement that discovery in this phase of the litigation would be limited to the issues
`raised in the parties’ respective pleadings. The district court adopted the parties’ report and
`apparently set a January 2006 trial date with the understanding that, initially at least, only the
`threshold issue concerning the existence of the Tribes’ inland treaty rights would be considered. The
`proposed intervenors have failed to articulate why the State of Michigan’s legal representation
`concerning this issue is inadequate. The relief requested by the proposed intervenors and the State
`of Michigan in their respective pleadings is nearly identical in that they both seek a declaration that
`the Tribes do not retain any off-reservation usufructuary rights under the Treaty. The proposed
`intervenors have not identified any separate arguments unique to them that they would like to make
`concerning the existence of the Tribes’ inland rights, nor have they shown that the State of Michigan
`would fail to present such arguments to the district court.
`Rather than identifying any weakness in the state’s representation in the current phase of the
`proceedings, the proposed intervenors seem more concerned about what will transpire in the future
`should the district court determine that the Tribes’ inland treaty rights continue to exist. This
`concern is apparent when reviewing the affirmative defenses set forth in their proposed answer,
`which prematurely seek to inject management and regulatory issues that are not yet before the court.
`In this regard, it is revealing that the proposed intervenors believe intervention is necessary to
`protect their divergent interests “in the event of a regulatory phase addressing usufructuary
`privileges.” (Emphasis added.) Similarly, they worry “that the narrow issue asserted will
`mysteriously snowball or leave the door open to other Treaty right issues.” While the proposed
`intervenors may be legitimately concerned about these future issues, they are not now, and possibly
`never will be, before the district court.
`The district court’s denial of intervention on the grounds of adequate representation is, in all
`relevant respects, indistinguishable from its earlier denial of MUCC’s Motion to Intervene, a
`decision which this court affirmed on appeal. In denying MUCC’s motion, the district court
`explained that its decision was largely dependent on the fact that the court had bifurcated the case
`into two phases. The court found that the State of Michigan would adequately represent MUCC’s
`interests during the first phase, which addressed only “the issues as to the existence of any treaty
`right and the bare legal question of whether the State of Michigan may regulate such a right.”
`Similarly, there is no indication here that the State of Michigan will not adequately represent the
`proposed intervenors’ interests during the current phase of the proceedings, which is only concerned
`with the question of whether the Tribes’ inland treaty rights continue to exist.
`For these reasons, we conclude that the proposed intervenors have not met their burden in
`demonstrating that the State of Michigan’s representation is inadequate in the current phase of the
`proceedings. Because a showing of inadequate representation is a necessary requirement to
`intervene as of right, we affirm the district court’s decision on this basis alone without addressing
`the remaining requirements. See Grubbs, 870 F.2d at 345.
`III.
`The proposed intervenors also appeal from the district court’s denial of their motion for
`permissive intervention. Permissive intervention is governed by Rule 24(b), which provides, in
`pertinent part:
`
`

`
`No. 04-1864
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`United States, et al. v. State of Michigan, et al.
`
`Page 7
`
`Permissive Intervention. Upon timely application anyone may be
`(b)
`permitted to intervene in an action: . . . (2) when an applicant’s claim or defense and
`the main action have a question of law or fact in common. . . . 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.
`Fed. R. Civ. P. 24(b).
`To intervene permissively, a proposed intervenor must establish that the motion for
`intervention is timely and alleges at least one common question of law or fact. Michigan State AFL-
`CIO v. Miller, 103 F.3d 1240, 1248 (6th Cir. 1997). Once these two requirements are established,
`the district court must then balance undue delay and prejudice to the original parties, if any, and any
`other relevant factors to determine whether, in the court’s discretion, intervention should be allowed.
`Id. “The denial of permissive intervention should be reversed only for clear abuse of discretion by
`the trial judge.” Purnell v. City of Akron, 925 F.2d 941, 951 (6th Cir. 1991).
`The district court noted that the proposed intervenors’ answer would complicate the case by
`requiring the adjudication of fact intensive issues regarding the regulation of separate usufructuary
`rights. Although the proposed intervenors did not request a delay in the proceedings, the court
`believed that their intervention would prejudice the original parties because they “would need
`prolonged discovery on the regulatory issues raised.” The court had already “established a schedule
`for discovery and trial premised on the narrow issue of whether the Plaintiff-Intervenors have
`retained usufructuary rights on inland property which has passed out of federal control.”
`Because the proposed intervenors’ answer prematurely seeks to inject management and
`regulatory issues into the current phase of the proceedings, the court rightly observed that permitting
`intervention would have prejudiced the original parties. Accordingly, the district court did not abuse
`its discretion in denying the proposed intervenors’ motion for permissive intervention.
`IV.
`Although we conclude that the State of Michigan will adequately represent the proposed
`intervenors’ interest in this case, we express no opinion as to the adequacy of the State of
`Michigan’s representation should the scope of the Tribes’ usufructuary rights become an issue.
`Should the litigation proceed that far, the proposed intervenors may renew their motion. The
`timeliness of such a motion should be judged from the point in time at which the scope of the Tribes’
`usufructuary rights, if any, are considered by the district court.
`For the foregoing reasons, the district court’s order denying the proposed intervenors’ motion
`to intervene is AFFIRMED.