Virgil E. Day v. Haunani Apoliona, individually

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 VIRGIL E. DAY; MEL
HOOMANAWANUI; JOSIAH L.
HOOHULI; PATRICK L.
KAHAWAIOLAA; SAMUEL L.
KEALOHA, JR.,
Plaintiffs-Appellants,
v.
HAUNANI APOLIONA, individually
and in her official capacity as
Chairperson and Trustee of the
Office of Hawaiian affairs; No. 06-16625
ROWENA AKANA; DANTE D.C. No.CARPENTER; DONALD CATALUNA; CV-05-00649-SOMLINDA KEAWE’EHU DELA CRUZ;  District of Hawaii,COLETTE Y. PI’IPI MACHADO; BOYD HonoluluP. MOSSMAN; OSWALD K. STENDER;
JOHN D. WAIHEE, IV, Trustees of ORDER
the Office of Hawaiian Affairs of
the State of Hawaii, sued in their
official capacities for declaratory
and prospective injunctive relief;
sued in individual capacities for
damages; CLAYTON HEE; CHARLES
OTA, Former Trustees of the
Office of Hawaiian Affairs of the
State of Hawaii, sued in their
individual capacities for damages,
Defendants-Appellees. 
13725

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Filed October 11, 2007
Before: David R. Thompson, Marsha S. Berzon, and
Richard C. Tallman, Circuit Judges.
ORDER
The State of Hawaii was amicus curiae in this matter in
proceedings before the district court and on appeal. It pre-
sented an argument that was potentially dispositive of this
case, namely, that plaintiffs do not have individual rights
under § 5(f) of the Hawaiian Admission Act that are enforce-
able through 42 U.S.C. § 1983. Defendants, including the
state Office of Hawaiian Affairs (OHA), took no position with
regard to that question.
The district court agreed with Hawaii on this issue and dis-
missed the case. We reversed, on the ground that earlier Ninth
Circuit precedent had decided the issue and was not, as the
district court believed, fundamentally inconsistent with later-
decided Supreme Court authority. As a consequence, we con-
cluded, a three-judge panel could not disregard the precedent.
See Day v. Apoliona, No. 06-16625 (Aug. 7, 2007) (slip op.),
at 9447.
Hawaii now moves to intervene pursuant to Fed. R. Civ. P.
24, in order to petition for panel rehearing and petition for
panel rehearing en banc. Under Federal Rule of Appellate
Procedure 35(b), only a party to a matter before this court
may petition for rehearing or rehearing en banc. The State of
Hawaii’s petition may therefore only be considered if its
Motion to Intervene is granted.
We note that Hawaii had the opportunity to intervene in
this matter at any time during these proceedings, both before
the district court and before this Court on appeal. The State
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of Hawaii indicates that it is filing its Motion to Intervene
now because none of the current parties will file a petition for
rehearing or for rehearing en banc. However, the reason for
this posture has been present since these proceedings began,
as OHA has declined from the beginning to defend on the
ground the Plaintiffs may not sue under § 1983.
To intervene under Fed. R. Civ. P. 24(a)(2), the State of
Hawaii must show that (1) “it has a significant protectable
interest relating to the . . . subject of the action;” (2) “the dis-
position of the action may, as a practical matter, impair or
impede . . . [its] ability to protect its interest;” (3) “the appli-
cation is timely;” and (4) “the existing parties may not ade-
quately represent . . . [its] interest.” United States v. Alisal
Water Corp., 370 F.3d 915, 919 (9th Cir. 2004). The State of
Hawaii has a protectable interest in the lands granted to it
under the Hawaiian Admission Act and the use of their pro-
ceeds and income to carry out the mandates of § 5(f). Forest
Conservation Council v. United States Forest Serv., 66 F.3d
1489, 1494 (9th Cir. 1995). The disposition of this action may
impede the State’s ability to protect this interest, not the least
because the Opinion may have a precedential impact regard-
ing the availability of an enforceable right of action under
§ 1983 to challenge the use of these proceeds and income.
Greene v. United States, 996 F.2d 973, 977 (9th Cir. 1993).
The unwillingness of the OHA defendants to take a posi-
tion on this issue, and, consequently, to petition for rehearing,
means that the State of Hawaii’s interest is not adequately
protected at this stage of the litigation. Forest Conservation
Council, 66 F.3d at 1498-99 (interest inadequately protected
if present parties will not make the intervenor’s arguments).
That the State has participated previously in this action as
amicus curiae does not mean that its interest is protected now,
as its ability to seek further review is conditioned on attaining
party status. United States v. City of Los Angeles, 288 F.3d
391, 400 (9th Cir. 2002) (“Amici status is insufficient to pro-
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tect the [intervenor’s] rights because such status . . . gives it
no right of appeal.”).
Determination of the timeliness of a motion to intervene
depends upon (1) “the stage of the proceeding,” (2) “the prej-
udice to other parties,” and (3) “the reason for and length of
the delay.” Alisal, 370 F.3d at 921. Although these proceed-
ings are now two years old, “mere lapse of time, without
more, is not necessarily a bar to intervention.” Id. Although
prejudice to a party exists when “ ‘relief from longstanding
inequities is delayed,’ ” id. at 922 (citations omitted), granting
the State of Hawaii’s Motion to Intervene will not create
delay by “inject[ing] new issues into the litigation,” id., but
instead will ensure that our determination of an already exist-
ing issue is not insulated from review simply due to the pos-
ture of the parties. Moreover, the fact that the State of Hawaii
is filing its Motion now, rather than earlier in the proceedings,
does not cause prejudice to Day and the other plaintiffs, since
the practical result of its intervention — the filing of a petition
for rehearing — would have occurred whenever the state
joined the proceedings. United States ex rel. McGough v.
Covington Technologies Co., 967 F.2d 1391, 1395 (9th Cir.
1992).
A would-be intervenor’s delay in joining the proceedings is
excusable when the intervenor does not “ ‘know[ ] or ha[ve]
reason to know that his interests might be adversely affected
by the outcome of litigation.’ ” Alisal, 370 F.3d at 923 (cita-
tion omitted). Here, the State of Hawaii asserts that up until
this point in the proceedings, it believed it could adequately
protect its interests through participation in the case as an
amicus. This assertion does not account for the fact that the
state was aware of the litigation and that the litigation had the
potential to affect its interests.
However, this Court has stated that “all the circumstances
of a case must be considered in ascertaining whether or not
a motion to intervene is timely under Fed. R. Civ. P. 24.”
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Legal Aid Society of Alameda Co. v. Dunlop, 618 F.2d 48, 50
(9th Cir. 1980). In this case, it cannot be said that the state
ignored the litigation or held back from participation to gain
tactical advantage; instead it sought amicus status, and —
singlehandedly — argued a potentially dispositive issue in
this case to the district court and this panel. While this Court
has denied intervenor status to amici who waited to join pro-
ceedings until after rulings on dispositive pre-trial motions
and then sought to interject new issues into the litigation, see
Smith v. Marsh, 194 F.3d 1045, 1050-51 (9th Cir. 1999), here
the State’s intervention does not similarly threaten to broaden
the scope of the case going forward.
While we find the State of Hawaii’s explanation for why it
did not intervene earlier less than entirely persuasive, our con-
cerns are outweighed by our discomfort with what will occur
at this stage of the proceedings if its motion is not granted.
Unless the State of Hawaii is made a party to these proceed-
ings, no petition for rehearing can be filed in this Court, and
there will be no opportunity for the Supreme Court to con-
sider whether to grant certiorari. We note that Hawaii’s legal
arguments on the merits of the § 1983 issue are by no means
frivolous, although we have concluded after careful consider-
ation that they cannot be accepted under prior Ninth Circuit
precedent. In the absence of any significant prejudice to Day
from granting the motion at this time rather than earlier, we
find these considerations determinative in this case.
In sum, even though Hawaii could have and should have
intervened earlier, we will not foreclose further consideration
of an important issue because of the positions of the original
parties, despite the long term impact on the State of Hawaii.
Granting the State of Hawaii’s Motion to Intervene avoids
this result.
The State of Hawaii’s Motion to Intervene is GRANTED.
The State of Hawaii’s Petition for Panel Rehearing and Peti-
tion for Rehearing En Banc, which was lodged with this Court
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on August 17, 2007, is ordered filed as of the date of this
Order.
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