Pueblo of San Felipe v. Haaland et al

IN THE UNITED STTES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
PUEBLO OF SAN FELIPE, a Federally
Recognized Indian Tribe,
Plaintiffs,
vs. 	No. CIV 23-0296 JB/LF
DEBRA HAALAND, Secretary of the Interior;
ROBERT ANDERSON, Solicitor, Department
of the Interior; TRACY STONE-MANNING,
Director, Bureau of Land Management; JERRY
GIDNER, Director, Bureau of Trust Funds
Administration; DARRYL LACOUNTE,
Director, Bureau of Indian Affairs; PATRICIA
MATTINGLY, Acting Regional Director,
Bureau of Indian Affairs Southwest Region;
SANTEE LEWIS, Superintendent, Bureau of
Indian Affairs Southern Pueblos Agency, and
DEPARTMENT OF THE INTERIOR,
Defendants.
MEMORANDUM OPINION1
THIS MATTER comes before the Court on the Defendant’s Motion for Limited
Intervention as of Right In Order to File Motion to Dismiss, and Memorandum In support, filed
September 8, 2023 (Doc. 32)(“Motion”). The Court held a hearing on November 20, 2023. See
Clerk’s Minutes at 1, filed November 20, 2023 (Doc. 47). The primary issue is whether the Court
should permit Santa Ana Pueblo to intervene on a limited basis in this suit. The Court concludes
that Santa Ana Pueblo may file a brief on the Federal Defendants’ Motion to Dismiss and
1 On September 10, 2024, the Court entered an Order granting in part and denying in part
the Defendant’s Motion for Limited Intervention as of Right In Order to File Motion to Dismiss,
and Memorandum In Support, filed September 8, 2023 (Doc. 32). 	See Order at 1-2, filed
September 10, 2024 (Doc. 81). In the Order, the Court states that it will “issue a Memorandum
Opinion at a later date more fully detailing its rationale for this decision.” Order at 1 n.1. This
Memorandum Opinion is the promised opinion.
Case 1:23-cv-00296-JB-LF Document 119 Filed 11/24/25 Page 1 of 29

- 2 -
Memorandum In Support, filed August 18, 2023 (Doc. 29)(“MTD”), but does not permit Santa
Ana Pueblo to file a separate motion to dismiss. Accordingly, the Court grants the Motion in part
and denies it in part.
FACTUAL BACKGROUND
The underlying facts of this case revolve around a disputed parcel of land between San
Felipe Pueblo and Santa Ana Pueblo’s lands in New Mexico, between Albuquerque and Santa Fe
along the Interstate 25 (“I-25”) corridor. Plat of the San Felipe Pueblo Grant (dated February 1,
1907), filed April 5, 2023 (Doc. 1-1)(“Hall Plat”). See Map of Dispute Area (dated September 20,
2013), filed April 5, 2023 (Doc. 1-2)(“BLM Resurvey”). San Felipe Pueblo is Santa Ana Pueblo’s
immediate northern neighbor; the disputed parcel lies at San Felipe Pueblo’s southern boundary
and Santa Ana Pueblo’s northern boundary. The heart of the dispute is which Pueblo owns the
land, and is thus entitled to compensation that the State highway authorities paid in the 1980s to
compensate for the construction of I-25 through the land; that compensation sat in escrow pending
determination of the land’s ownership until 2018, when the Interior Department paid the money to
Santa Ana Pueblo. See Complaint ¶ 136-137, at 39; id. ¶¶ 187-193, at 50-52.
This dispute stretches back hundreds of years. The relevant history begins in 1689, when
the King of Spain provided a land grant to San Felipe for its land in the region. See Complaint
¶ 21, at 9. In 1763, Santa Ana Pueblo, displaced from the area farther North it traditionally had
inhabited, purchased from a Spanish settler the El Ranchito Tract, which lies directly South of the
San Felipe Pueblo’s land. 	See Complaint ¶¶ 155-157, at 43-44. 	San Felipe Pueblo, however,
claimed parts of this land and began selling parts of it off to Spanish settlers. See Pueblo of Santa
Ana v. Baca, 844 F.2d 708, 709 (10th Cir. 1988)(“Baca”).2
2 San Felipe Pueblo disputes certain factual conclusions that the United States District Court
for the District of New Mexico reaches in Pueblo of Santa Ana v. Baca, No. CIV 81-0303 (D.N.M.
Case 1:23-cv-00296-JB-LF Document 119 Filed 11/24/25 Page 2 of 29

- 3 -
Interested parties have litigated the land’s ownership several times, under multiple
statutory and regulatory schemes, over the course of more than 200 years. Parties first litigated
the matter in 1813, when Santa Ana Pueblo petitions the Spanish authorities for a declaration that
the sales are invalid, because San Felipe Pueblo has no right in the land that San Felipe Pueblo
sells; Spanish authorities inspected the land, a tribunal in Santa Fe heard three days of evidence,
and Spain decided in Santa Ana Pueblo’s favor. See Baca, 844 F.2d at 709. San Felipe appeals
that decision through two layers of appellate review, both times losing, which culminated at the
Real Audiencia of Guadalajara, a court of last resort for the territory in which the dispute occurred.
See Baca, 844 F.2d at 710-12.
New Mexico came under the United States of America’s control per the Treaty of
Guadalupe Hidalgo of 1848, which obligates the United States to recognize all land titles under
Spanish and Mexican law. See Complaint ¶¶ 22-23, at 9. In 1854, Congress passed a law creating
the office of the Surveyor General of New Mexico, who ascertains land titles under Spanish and
Mexican law, and recommends them for Congressional recognition. 	See Complaint ¶ 24, at 9.
San Felipe Pueblo submits its 1689 Spanish grant to the Surveyor General, who determines it is
valid, see Complaint ¶¶ 28-31, at 10-11; upon the Surveyor General’s confirmation, Congress
orders San Felipe’s land be surveyed, and that a patent3 for it be issued based on the survey, see
1985), upon which the Tenth Circuit in Pueblo of Santa Ana v. Baca, 844 F.2d 708 (10th Cir.
1988), relies. 	The Court draws on facts that San Felipe does not dispute in these cases for
background.
3 A land patent is a sovereign’s dispensation of public lands’ ownership to a person. See
Patent, Black’s Law Dictionary (11th ed. 2019)(defining “patent” as “[t]he governmental grant of
a right, privilege, or authority. . . [or t]he official document so granting[,] . . . [a]lso termed public
grant”); id. (defining “land patent” as “[a]n instrument by which the government conveys a grant
of public land to a private person”); id. Letters Patent (defining “letters patent” as “[a] document
granting some right or privilege, issued under governmental seal but open to public inspection . . .
[or a] governmental grant of the exclusive right to use an invention or design. . . . [a]lso termed (in
both senses) patent deed”).
Case 1:23-cv-00296-JB-LF Document 119 Filed 11/24/25 Page 3 of 29

- 4 -
Complaint ¶ 32, at 11. 	Reuben E. Clements surveys San Felipe Pueblo’s land in 1860, and, in
1864 President Abraham Lincoln issues San Felipe’s patent that incorporates the Clements Survey.
See Complaint ¶ 35, at 12.
In 1897, under the Private Land Claims Act, 26 Stat. 854 (“PLCA”), interested parties
again litigate the issue, and the Court of Private Land Claims decide in San Felipe Pueblo’s favor;
the PCLA determines the boundary encroaches into the El Ranchito Tract. Complaint ¶¶ 36-37,
at 12; id. ¶¶ 50-77, at 17-22. 	Santa Ana Pueblo files a petition against the United States in the
PLCA Court, pursuant to the PLCA, to establish its holdings. See Complaint ¶¶ 53-59, at 17-19.
The PLCA Court confirms Santa Ana Pueblo’s petition and orders a survey be made of Santa Ana
Pueblo’s lands, which subsequently should be patented, conditioned on the premise that the patent
not award to Santa Ana Pueblo any lands that the resurvey determines are part of San Felipe
Pueblo’s 1864 patent. See Complaint ¶¶ 58-62, at 18-19. Santa Ana Pueblo does not appeal that
decision. See Complaint ¶ 62, at 19. Subsequent surveys and resurveys largely confirm the 1860
Clements Survey boundaries of the San Felipe Patent-El Ranchito Purchase boundaries, see
Complaint ¶¶ 63-70, at 19-21; as noted above, the 1860 Clements Survey favors San Felipe Pueblo.
Another survey, the 1916 Joy Survey, also favors San Felipe Pueblo. See Complaint ¶ 78-79, at
23.
In the 1920s and 1930s, two proceedings under the Pueblo Lands Act, 43 Stat. 636
(“PLA”), United States v. Brown and United States v. Algodones Land Co., again established the
land’s boundaries in San Felipe Pueblo’s favor based on the 1916 Joy Survey. Complaint ¶¶ 108-
109, at 31-32 (describing United States v. Brown). 	See Complaint ¶¶ 113-124, at 32-35
(discussing United States v. Algodones Land Co.). A supplemental report that the Pueblo Lands
Board issues in 1931, however, notes that earlier federal surveys which favor San Felipe Pueblo
over Santa Ana Pueblo are contested. 	See Complaint ¶ 120, at 34. 	The Pueblo Land Board’s
Case 1:23-cv-00296-JB-LF Document 119 Filed 11/24/25 Page 4 of 29

- 5 -
supplemental report recommends a “friendly suit” between San Felipe Pueblo and Santa Ana
Pueblo to resolve the issue, but neither Tribe waives its sovereign immunity to adjudicate the
matter. See Complaint ¶ 120, at 34.
Later, New Mexico highway authorities developed I-25, whose path crosses through the
Conflict Area. 	See Complaint ¶¶ 134, at 38. 	Neither San Felipe Pueblo nor Santa Ana Pueblo
object to the highway’s construction through their lands, but they dispute -- this dispute being the
one up to the present day -- entitlement to compensation for that portion of I-25 crossing the
Conflict Area, i.e., based on which Pueblo’s land it is. See Complaint ¶¶ 136-145, at 39-41. The
United States’ Bureau of Indian Affairs places in escrow the I-25 compensation, pending some
final resolution of the ownership matter. 	See Complaint ¶¶ 136-145, at 39-41. 	Although not
directly concerning the dispensation of the highway monies, other litigation has addressed the
Conflict Area’s ownership. See Complaint ¶¶ 149-158, at 42-44 (discussing Baca, 844 F.2d 708;
United States v. Thompson, 941 F.2d 1074 (10th Cir. 1991)).
Santa Ana in 1989 petitions the Department of the Interior to correct the survey of Santa
Ana Pueblo’s patent, based on alleged errors in the surveys that produce overlap between its El
Ranchito Purchase tract and San Felipe Pueblo’s patent, i.e., creating the Conflict Area. 	See
Complaint ¶ 159, at 45. In the 1988 Tarr Opinion, the Interior Department determines that it lacks
the authority to correct surveys based on Congressional patents. See Complaint ¶ 163, at 46. Upon
an appeal by a different Pueblo of the 1988 Tarr Opinion’s conclusion, the United States District
Court for the District of Columbia determines that the Tarr Opinion’s position is arbitrary and
capricious, and so the Interior Department must reconsider whether it lacks a correction authority.
See Pueblo of Sandia v. Babbitt, No. CIV 94-2624, 1996 WL 808067 (D.D.C. Dec. 10
1996)(Greene, J.). The Interior Department reconsiders the 1988 Tarr opinion, and, in 2000, issues
the Leshy Opinion, determining that it possesses the authority to correct such surveys as that upon
Case 1:23-cv-00296-JB-LF Document 119 Filed 11/24/25 Page 5 of 29

- 6 -
which Santa Ana Pueblo’s patent is based. 	See Complaint ¶¶ 161-165, at 45-46. 	The Interior
Department urges San Felipe Pueblo and Santa Ana Pueblo to negotiate a settlement of the matter.
See Memorandum from Hilary C. Tompkins, Solicitor, to Kevin K. Washburn, Assistant Secretary
for Indian Affairs at 2, 3 n.9 (dated July 7, 2013), filed August 18, 2023 (Doc. 29-1)(“Tompkins
Opinion”). Although San Felipe Pueblo and Santa Ana Pueblo come close to resolution -- whereby
San Felipe Pueblo relinquishes its claim to the Conflict Area, and, in exchange, Santa Ana Pueblo
supports 	San 	Felipe 	Pueblo’s 	pursuit 	of 	purchasing 	replacement 	land 	with 	the 	federal
government’s assistance -- negotiations ultimately fail, and the parties reach no settlement. See
Tompkins Opinion at 3 n.9.
In 2013, the Interior Department issues the Tompkins Opinion, which determines that,
given the failure of negotiations between San Felipe Pueblo and Santa Ana Pueblo, the Interior
Department needs to exercise the authority, which the 2000 Leshy Opinion determines that the
Secretary possesses, to correct Santa Ana Pueblo’s patent’s survey. See Complaint ¶ 173, at 48.
After the 2013 Tompkins Opinion, the Interior Department conducts a corrected resurvey of the
disputed area (“Corrective Resurvey”), decides in Santa Ana Pueblo’s favor the disputed area, and
publishes notice of its intent to file the Corrective Resurvey. Complaint ¶¶ 174-178, at 48-49. San
Felipe Pueblo appeals to the Interior Board of Land Appeals (“IBLA”) the notice, but, in 2017,
IBLA decides against San Felipe Pueblo as to the Corrective Resurvey’s validity. 	Complaint
¶¶ 179-185, at 49-50. 	In 2018, the Interior Department formally files the plats based on the
Corrective Resurvey. See Complaint ¶ 186, at 50.
Based on the Corrective Resurvey’s determination that the Conflict Area belongs to Santa
Ana Pueblo, the Interior Department disburses to Santa Ana upon Santa Ana Pueblo’s formal
request the I-25 compensation funds in escrow for more than thirty years. See Complaint ¶¶ 187-
191, at 50-51. After disbursing the funds to Santa Ana Pueblo, the Interior Department informs
Case 1:23-cv-00296-JB-LF Document 119 Filed 11/24/25 Page 6 of 29

- 7 -
San Felipe Pueblo of the disbursement of the escrow funds. See Complaint ¶¶ 187-191, at 50-51.
San Felipe Pueblo objects in a letter to the Interior Department’s action of disbursing to Santa Ana
Pueblo the escrow funds without first informing San Felipe Pueblo. See Complaint ¶ 192, at 52.
San Felipe Pueblo contends that the Interior Department’s actions violate the Interior Department’s
trust responsibilities to San Felipe Pueblo. See Complaint ¶ 192, at 52. The Interior Department
responds that the 2013 Tompkins Opinion and the 2017 IBLA decision upholding the Corrective
Resurvey dictate its actions, and the Interior Department acknowledges that San Felipe Pueblo
may pursue any available avenues for legal relief. See Complaint ¶ 193, at 52.
PROCEDURAL BACKGROUND
On April 5, 2023, San Felipe files its Complaint. 	In the Complaint, San Felipe Pueblo
alleges the following causes of action: (i) claims under the Administrative Procedure Act, 5
U.S.C. § 706 (“APA”), Complaint ¶¶ 197-217, at 53-57; (ii) claims under the Declaratory Relief
Act, 28 U.S.C. § 2201, see Complaint ¶¶ 218-227, at 57-60; and (iii) a Breach of Trust
Responsibility, see Complaint ¶¶ 228-239, at 60-64. San Felipe Pueblo’s APA claims are based
on the actions the Interior Department takes in resurveying the San Felipe Pueblo-Santa Ana
Pueblo boundary lines and in paying out the escrow funds based on its determination that Santa
Ana Pueblo owns those funds:
206. 	Opinion M-37027, the April 5, 2017 IBLA decision, the April 20,
2017 filing of the resurvey, the 2017 change to the record ownership of the Conflict
Area in BIA TAAMS, and the January 11, 2018 disbursement of the tribal trust
funds (the Resurvey Actions) were arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law, in violation of the APA. 5 U.S.C. §
706(2)(A).
207. 	The Resurvey Actions were also contrary to constitutional right,
power, privilege or immunity, in violation of the APA. 5 U.S.C. § 706(2)(B).
208. 	The Resurvey Actions were also in excess of statutory jurisdiction,
authority, or limitations, or short of statutory right, in violation of the APA. 	5
U.S.C. § 706(2)(C).
Case 1:23-cv-00296-JB-LF Document 119 Filed 11/24/25 Page 7 of 29

- 8 -
209. 	San Felipe therefore requests that the Resurvey Actions be declared
unlawful and set aside.
210. 	San Felipe further requests the Defendants be ordered to restore the
boundaries and title of the San Felipe Patent, and related matters, to the status that
existed before the Resurvey Actions, including restoring the record ownership in
the BIA TAAMS to San Felipe, replenishing the tribal trust account, refiling
previous surveys and plats or resurveying, as appropriate, and restoring the survey
boundary monuments that were removed.
. . . .
215. 	Rather than paying such compensation to San Felipe, the Defendants
caused such compensation to be disbursed to Santa Ana on January 11, 2018.
216. 	The Department and its officials have unlawfully withheld or
unreasonably delayed the payment to San Felipe of such compensation, in violation
of the APA. 5 U.S.C. § 706(1).
217. 	San Felipe therefore requests that the Court compel the Defendants
to take such actions as are necessary to promptly make full payment to San Felipe
of the right-of-way and easement compensation mandated by law, with interest.
Complaint ¶¶ 206-210, at 55-56; id. ¶¶ 215-217, at 57. 	San Felipe Pueblo’s Declaratory Relief
claims and its Breach of Trust Responsibility claims also revolve around the actions that the
Interior Department took around its Corrective Resurvey:
224. 	San Felipe therefore requests under 28 U.S.C. § 2201 a judicial
declaration that San Felipe’s title and right to sole possession of the lands within
the boundaries of the San Felipe Patent has been previously and conclusively
determined; that no claims adverse to San Felipe’s title and right may be validly
asserted, including Santa Ana’s claim to the Conflict Area; and that the Department
of the Interior and its officials have no authority to interfere with, and are obligated
to recognize, San Felipe’s title and right to sole possession and quiet enjoyment of
the lands within the boundaries of the San Felipe Patent, including the Conflict
Area.
. . . .
227. 	San Felipe requests a judicial declaration that its title and right to
sole possession of the lands within the boundaries of the San Felipe Patent,
including the Conflict Area, satisfies the sole condition for disbursement of the
entire tribal trust account to San Felipe.
Case 1:23-cv-00296-JB-LF Document 119 Filed 11/24/25 Page 8 of 29

- 9 -
. . . .
237. 	The actions of the Defendants in dissipating and disbursing the tribal
trust account breached Defendants’ trust responsibilities to San Felipe.
. . . .
239. 	The actions of the Defendants as the trustee responsible for
safeguarding the property of San Felipe as recorded within the BIA TAAMS, to
alter the record ownership of the San Felipe Patent sometime between April 20,
2017 and November 14, 2017, without any notice to San Felipe and without any
legal right to do so are egregious, and San Felipe requests that the Court order the
Defendants to restore the record ownership status of the San Felipe Patent to San
Felipe in the BIA TAAMS.
San Felipe’s Prayer for Relief reads:
a. 	A judgment declaring that the final decision in United States v.
Algodones Land Co. conclusively and finally quieted San Felipe’s unextinguished
title to the lands within the boundaries of the San Felipe Patent.
b. 	A judgment declaring that all claims adverse to San Felipe’s title are
now barred by the expiration of the limitations periods provided in the Pueblo
Lands Act.
c. 	A judgment declaring the Defendants’ legal obligation to recognize
and to not interfere with San Felipe’s title and its right to sole possession and quiet
enjoyment of the lands within the boundaries of the San Felipe Patent and enjoining
the Defendants from interfering with such title, right, and quiet enjoyment.
d. 	A judgment declaring unlawful and setting aside Solicitor’s Opinion
M-37027, the April 5, 2017 IBLA decision, the April 20, 2017 filing of the 2013
resurvey, the alteration of title to the San Felipe Patent in the BIA TAAMS between
April 20, 2017 and November 17, 2017, and the January 11, 2018 disbursement of
the tribal trust account funds.
e. 	A judgment ordering the Defendants to restore to their previous
status San Felipe’s title and right to lands within the San Felipe Patent boundaries,
and to make all necessary and appropriate restoration to the BIA TAAMS, surveys
and plats on file, and the monuments marking the boundaries of the San Felipe
Patent.
f. 	A judgment declaring that San Felipe’s title and right to sole
possession of the lands within the boundaries of the San Felipe Patent, including
the Conflict Area, satisfies the sole condition for disbursement of the entire tribal
trust account to San Felipe.
Case 1:23-cv-00296-JB-LF Document 119 Filed 11/24/25 Page 9 of 29

- 10 -
g. 	A judgment compelling the Secretary of the Interior to provide a full
accounting of the tribal trust account, to replenish the tribal trust account to the
appropriate balance, with interest, as of the date of the Court’s order, and to then
release and pay the entire tribal trust account balance to San Felipe.
h. 	In the alternative to restoration of and disbursement of the tribal trust
account to San Felipe, a judgment in equity compelling the Defendants to pay
equitable restitution to San Felipe in the amount that should be in the tribal trust
account as of the date of the Court’s order.
i. 	An award of San Felipe’s attorney fees, costs, and such other relief
as may be just and equitable.
Complaint, Prayer for Relief ¶¶ (a)-(i), at 64-65.
On August 18, 2023, the Federal Defendants file their MTD. They argue that the Court
lacks jurisdiction over San Felipe Pueblo’s lawsuit. See MTD at 12-30. In the Defendants’ view,
the Complaint seeks, in effect, to have the Court adjudicate a dispute over lands in which the
United States asserts an interest -- specifically, a dispute over Indian lands -- which means the suit
can be brought only under the QTA’s framework for waiving federal sovereign immunity. 	See
MTD at 12-20. Because, however, the QTA does not waive sovereign immunity as to disputes
over Indian lands, there is no applicable sovereign immunity waiver, and, in turn, the Court lacks
jurisdiction to hear the Complaint. 	See MTD at 20-26. 	The Defendants argue that all of the
Complaint’s theories of liability -- the APA claims, Declaratory Relief claims, and trust breach
claims -- fail, because they turn on the underlying land dispute, over which the Court lacks
jurisdiction. See MTD at 12-26. The Defendants offer additional arguments against the Complaint
based on standing and on the unavailability of free-floating trust responsibilities untethered to
specific statutory provisions. See MTD at 26-34.
San Felipe Pueblo responds that the QTA does not bar its claims and that its Complaint is
otherwise viable. See Plaintiff’s Memorandum In Opposition to Defendants’ Motion to Dismiss,
filed October 13, 2023 (Doc. 40). 	The Defendants reply, arguing that San Felipe Pueblo’s
Case 1:23-cv-00296-JB-LF Document 119 Filed 11/24/25 Page 10 of 29

- 11 -
Response demonstrates its Complaint predicates a land dispute over which the Court lacks
jurisdiction. 	See Federal Defendants’ Reply In Support Of Their Motion To Dismiss, filed
November 9, 2023 (Doc. 43).
On September 8, 2023, Santa Ana Pueblo files its Motion for Limited Intervention as of
Right in Order to File Motion to Dismiss and Memorandum in Support. See Motion at 1. In its
Motion, Santa Ana Pueblo contends that it may intervene as of right, because it has Article III
standing and meets the requirements of rule 24(a)(2) of the Federal Rules of Civil Procedure. See
Motion at 6. According to Santa Ana Pueblo, Article III standing requires: (i) injury-in-fact, (ii)
causation, and (iii) redressability. See Motion at 8-11.; See Lujan Defs. Of Wildlife, 504 U.S. 555,
560-61 (1992). Santa Ana Pueblo identifies its injury as the potential loss of approximately 564
acres of its land; it asserts that the cause of this potential injury is traceable directly to San Felipe
Pueblo’s request relief, and it asserts that the Court can prevent this injury if the federal actions
under attack in the Complaint are upheld. See Motion at 7. According to Santa Ana Pueblo, to
satisfy rule 24(a)(2) criteria, the party attempting intervention must prove: (i) that the motion is
timely; (ii) the proposed intervenor has a substantial interest; (iii) the action threatens to impair
that interest; and (iv) the proposed intervenors interest is not adequately represented. Fed. R. Civ.
P. 24(a)(2). 	Santa Ana Pueblo asserts that: (i) the motion is timely, because it seeks leave to
intervene before any significant activity occurs in the case; (ii) it has a substantial interest, because
the dispute is over 564 acres of its land; (iii) the action threatens to impair that interest, because it
involves the important issue of ownership; and (iv) the United States does not represent its interest,
because the United States has taken adverse positions such as recognizing that San Felipe Pueblo
retains title to portions of Private Claims Four, Five, and Six. 	See Motion at 8-11. 	Santa Ana
Pueblo therefore concludes that they may intervene as of right. See Motion at 8-11.
Case 1:23-cv-00296-JB-LF Document 119 Filed 11/24/25 Page 11 of 29

- 12 -
On September 22, 2023, San Felipe Pueblo files its Opposition to Santa Ana Pueblo’s
Motion for Limited Intervention as of Right in Order to File Motion to Dismiss, filed September
22, 2023 (Doc. 34)(“Response”). In the Response, San Felipe Pueblo requests that the Court deny
Santa Ana Pueblo’s Motion. 	See Response at 2. 	It asserts three reasons why intervention is
inappropriate under rule 24(a)(2). See Response at 2. First, San Felipe Pueblo argues that Santa
Ana Pueblo does not have Article III standing, because Santa Ana Pueblo does not have a legally
cognizable interest in the subject of the underlying action. See Response at 3. San Felipe Pueblo
reasons that the Pueblo Lands Act extinguished Santa Ana’s legally cognizable interest when Santa
Ana did not bring any action before the statute of limitations expired on May 31, 1934. 	See
Response at 4. 	Second, San Felipe Pueblo argues that Santa Ana Pueblo is not entitled to
intervention, because resolution of the underlying action without Santa Ana Pueblo does not
threaten its ability to protect its legally cognizable interest. See Response at 6. Specifically, San
Felipe Pueblo argues that the authority to alter the boundary between Pueblos is solely Congress’;
thus, even if San Felipe Pueblo prevails, Santa Ana Pueblo may petition Congress to seek
correction of the Pueblo boundaries. 	See Response at 6. 	Third, San Felipe Pueblo argues that
Santa Ana Pueblo may not intervene, because the Federal Defendants adequately represent Santa
Ana Pueblo’s interest. See Response at 7. San Felipe Pueblo reasons that, because the Federal
Defendants and Santa Ana Pueblo share an identical objective of defending and upholding the
Federal Defendants’ actions, Santa Ana Pueblo has adequate representation. See Response at 7.
San Felipe therefore concludes that Santa Ana cannot intervene.
On October 6, 2023, Santa Ana Pueblo files its Reply in Support of its Motion for Limited
Intervention in Order to File Motion to Dismiss, filed October 6, 2023 (Doc. 38)(“Reply”). First,
Santa Ana Pueblo argues that San Felipe Pueblo’s argument that Santa Ana Pueblo has no legally
cognizable interest in the case is inappropriate, because when determining intervention, courts do
Case 1:23-cv-00296-JB-LF Document 119 Filed 11/24/25 Page 12 of 29

- 13 -
not reach the claimed interest’s merits. See Reply at 3. Second, Santa Ana Pueblo argues that it
has an interest in the disputed area of land and that, even if it is true that Santa Anta Pueblo could
petition Congress, that is not a bar to Santa Ana Pueblo participating in the current litigation. See
Reply at 6. 	Third, Santa Ana Pueblo contends that the Federal Defendants do not adequately
represent its interest, because the Federal Defendants recognize that San Felipe Pueblo has good
title to portions of Private Claims Four, Five, and Six -- a position with which Santa Ana disagrees.
As a result, Santa Ana Pueblo concludes that it may intervene.
LAW REGARDING INTERVENTION
Rule 24 provides for intervention of right or permissive intervention on timely motion:
(a) 	Intervention of Right. On timely motion, the court must permit anyone to
intervene who:
(1) 	is given an unconditional right to intervene by a federal statute; or
(2) 	claims an interest relating to the property or transaction that is the
subject of the action, and is so situated that disposing of the action
may as a practical matter impair or impede the movant's ability to
protect its interest, unless existing parties adequately represent that
interest.
(b) 	Permissive Intervention.
(1) 	In General. 	On timely motion, the court may permit anyone to
intervene who:
(A) 	is given a conditional right to intervene by a federal statute;
or
(B) 	has a claim or defense that shares with the main action a
common question of law or fact.
(2) 	By a Government Officer or Agency. On timely motion, the court may
permit a federal or state governmental officer or agency to intervene if a
party's claim or defense is based on:
(A) 	a statute or executive order administered by the officer or agency;
or
Case 1:23-cv-00296-JB-LF Document 119 Filed 11/24/25 Page 13 of 29

- 14 -
(B) 	any regulation, order, requirement, or agreement issued or made
under the statute or executive order.
(3) 	Delay or Prejudice. In exercising its discretion, the court must consider
whether the intervention will unduly delay or prejudice the adjudication of
the original parties' rights.
Fed. R. Civ. P. 24(a)-(b). 	“The movant bears the burden of establishing his or her right to
intervene.” Ortiz v. New Mexico, 550 F. Supp. 3d 1020, 1070 (D.N.M. 2021)(Browning, J.).
1. 	Timeliness.
Before discussing the differences between the two procedural paths to intervention, the
Court addresses one common requirement: timeliness. Both intervention as a matter of right and
permissive intervention require that the motion to intervene be “timely.” Fed. R. Civ. P. 24. “The
timeliness of a motion to intervene is assessed ‘in light of all the circumstances, including the
length of time since the applicant knew of his interest in the case, prejudice to the existing parties,
prejudice to the applicant, and the existence of any unusual circumstances.’” Utah Ass'n of Cntys.
v. Clinton, 255 F.3d 1246, 1250 (10th Cir. 2007)(quoting Sanguine, Ltd. v. U.S. Dep't of Interior,
736 F.2d 1416, 1418 (10th Cir. 1984)).
While rule 24 does not specify what makes a motion to intervene timely, the Tenth
Circuit has held that “[t]he timeliness of a motion to intervene is assessed in light
of all the circumstances, including the length of time since the applicant knew of
his interest in the case, prejudice to the existing parties, prejudice to the applicant,
and the existence of any unusual circumstances.
Am. Ass'n of People with Disabilities v. Herrera, 257 F.R.D. 236, 245 (D.N.M. 2008)(Browning,
J.)(quoting Utah Ass'n of Cntys. v. Clinton, 255 F.3d at 1250)(brackets in Am. Ass'n of People
with Disabilities v. Herrera, but not in Utah Ass'n of Cntys. v. Clinton). The Tenth Circuit states
that the timeliness “analysis is contextual” and that courts should not use “absolute measures of
timeliness.” Utah Ass'n of Cntys. v. Clinton, 255 F.3d at 1250 (quoting Sierra Club v. Espy, 18
F.3d 1202, 1205 (5th Cir. 1994)). A court properly denies intervention where, for example, a case
is near its end stage, and allowing a party to intervene causes undue prejudice and delay in the
Case 1:23-cv-00296-JB-LF Document 119 Filed 11/24/25 Page 14 of 29

- 15 -
proceeding; on the other hand, intervention is proper where, despite time’s passage, there is limited
activity in the case, and the intervention will not prejudice the existing parties. See Am. Ass'n of
People with Disabilities v. Herrera, 257 F.R.D. at 245-46.
2. 	Intervention of Right.
In the absence of an unconditional, federal statutory right to intervene, a movant must
satisfy the following three criteria to qualify for intervention of right: (i) the movant must have an
interest in the litigation's subject matter; (ii) the movant's interest will be impaired or impeded if
movant is not allowed to intervene; and (iii) the litigation's existing parties do not represent
adequately the movant's interest. See Fed. R. Civ. P. 24(a)(2). The Tenth Circuit “has historically
taken a ‘liberal’ approach to intervention and thus favors the granting of motions to intervene.”
W. Energy All. v. Zinke, 877 F.3d 1157, 1164 (10th Cir. 2017)(citing Coal. of Ariz./N.M. Cntys.
for Stable Econ. Growth v. Dep't of Interior, 100 F.3d 837, 841 (10th Cir. 1996)).
The first element --“[t]he interest element” -- “is ‘a practical guide to disposing of lawsuits
by involving as many apparently concerned persons as is compatible with efficiency and due
process.’” WildEarth Guardians v. Nat'l Park Serv., 604 F.3d 1192, 1198 (10th Cir. 2010)(quoting
San Juan County, 503 F.3d at 1195)(emphasis in WildEarth Guardians v. Nat'l Park Serv, but not
in San Juan County). An interest that is direct, substantial, and legally protectable likely justifies
intervention. See San Juan County, 503 F.3d at 1194 (“This is not to say that it is error for a court
addressing an application for intervention to consider whether the prospective intervenor's interest
is direct, substantial, and legally protectable. 	As we previously stated, an interest that clearly
satisfies all these conditions would likely justify intervention.”)(citing 7C Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure, § 1908, at 272), abrogated on other grounds by
Hollingsworth v. Perry, 570 U.S. 693, 697-711 (2013). 	“The movant's claimed interest is
measured in terms of its relationship to the property or transaction that is the subject of the action,
Case 1:23-cv-00296-JB-LF Document 119 Filed 11/24/25 Page 15 of 29

- 16 -
not in terms of the particular issue before the district court.” WildEarth Guardians v. Nat'l Park
Serv., 604 F.3d at 1198 (citing Utah Ass'n of Cntys. v. Clinton, 255 F.3d 1246, 1252 (10th Cir.
2001)).
The second element -- impairment or impediment to the intervenor's interest -- presents “a
minimal burden.” WildEarth Guardians v. Nat'l Park Serv., 604 F.3d at 1199. “‘To satisfy [the
impairment] element of the intervention test, a would-be intervenor must show only that
impairment of its substantial legal interest is possible if intervention is denied.’” 	WildEarth
Guardians v. U.S. Forest Serv., 573 F.3d 992, 995 (10th Cir. 2009)(quoting Utah Ass'n of Cntys.
v. Clinton, 255 F.3d at 1253)(brackets in Utah Ass'n of Cntys. v. Clinton). “If an absentee would
be substantially affected in a practical sense by the determination made in an action, he should, as
a general rule, be entitled to intervene.” WildEarth Guardians v. U.S. Forest Serv., 573 F.3at 995
(quoting San Juan County, 503 F.3d at 1195). “Although the intervenor cannot rely on an interest
that is wholly remote and speculative, the intervention may be based on an interest that is
contingent upon the outcome of the litigation.” San Juan County, 503 F.3d at 1203 (quoting United
States v. Union Elec. Co., 64 F.3d 1152, 1162 (8th Cir. 1995)). If a proposed intervenor's “interest
will be prejudiced if it does not participate in the main action, the mere availability of alternative
forums is not sufficient to justify denial of a motion to intervene.” Utah Ass'n of Cntys. v. Clinton,
255 F.3d at 1254 (quoting Commodity Futures Trading Comm'n v. Heritage Cap. Advisory Servs.,
Ltd., 736 F.2d 384, 387 (7th Cir. 1984)). For rule 24(a)(2)’s purposes, “sufficient impairment may
result even from the ‘stare decisis effect’ of a district court's judgment,” WildEarth Guardians v.
National Park Service, 604 F.3d at 1199 (quoting Utahns for Better Transportation v. United States
Department of Transportation, 295 F.3d 1111, 1116 (10th Cir. 2002)), and a court may consider
“any significant legal effect in the applicant's interest and [is] not restricted to a rigid res judicata
Case 1:23-cv-00296-JB-LF Document 119 Filed 11/24/25 Page 16 of 29

- 17 -
test,” Coalition of Arizona/New Mexico Counties for Stable Economic Growth v. Department of
Interior, 100 F.3d at 844.
As for the third element, the would-be intervenor also has the “minimal” burden of showing
that the existing parties does not represent adequately its interest. WildEarth Guardians v. Nat'l
Park Serv., 604 F.3d at 1200. “The movant must show only the possibility that representation may
be inadequate.” 	WildEarth Guardians v. Nat'l Park Serv., 604 F.3d at 1200 (citing Utahns for
Better Transp. v. U.S. Dep't of Transp., 295 F.3d at 1117). “The possibility that the interests of
the applicant and the parties may diverge need not be great in order to satisfy this minimal burden.”
WildEarth Guardians v. Nat'l Park Serv., 604 F.3d at 1200 (quoting Utah Ass'n of Cntys. v.
Clinton, 255 F.3d at 1254).
3. 	Permissive Intervention.
“To permissively intervene, a party need not have a direct personal or pecuniary interest in
the subject of the litigation.” San Juan County, 503 F.3d at 1207. The court must consider whether
intervention will cause undue delay or prejudice when considering whether to grant permissive
intervention. See Fed. R. Civ. P. 24(b)(3); DeJulius v. New England Health Care Emps. Pension
Fund, 429 F.3d 935, 943 (10th Cir. 2005)(noting that district courts must consider undue prejudice
or delay in deciding whether to grant permissive intervention). The Court interprets rule 24(b) to
allow permissive intervention when: “(i) the application to intervene is timely; (ii) the applicant's
claim or defense and the main action have a question of law or fact in common; and (iii)
intervention will not unduly delay or prejudice the adjudication of the original parties' rights.”
Wheeler Peak v. L.C.I.2, Inc., No. CIV 07-1117, 2009 WL 521799, at *3 (D.N.M. Oct. 27,
2009)(Browning, J.)(citing Forest Guardians v. U.S. Dep't of Interior, No. CIV 02-1003, 2004 WL
3426413, at *10 (D.N.M. Jan. 12, 2004)(Browning, J.)). 	“The grant of permissive intervention
lies within the discretion of the district court.” Kane Cnty. v. United States, 597 F.3d 1129, 1135
Case 1:23-cv-00296-JB-LF Document 119 Filed 11/24/25 Page 17 of 29

- 18 -
(10th Cir. 2010)(citing City of Stilwell v. Ozarks Rural Elec. Coop., 79 F.3d at 1043). 	Class
members may intervene permissively even after the named plaintiffs settle their claims. See Payne
v. Tri-State Careflight, LLC, No. CV 14-1044 JB/KBM, 2016 WL 9738302, at *25-26 (D.N.M.
July 12, 2016)(Browning, J.).
LAW REGARDING ARTICLE III STANDING
“Article III of the Constitution limits the jurisdiction of federal courts to Cases and
Controversies.” San Juan Cnty. v. United States, 503 F.3d at 1171. See U.S. Const. art. III, § 2.
“In general, this inquiry seeks to determine ‘whether [the plaintiff has] such a personal stake in the
outcome of the controversy as to assure that concrete adverseness which sharpens the presentation
of issues upon which the court so largely depends for illumination.’” Wyoming ex rel. Crank v.
United States, 539 F.3d 1236, 1241 (10th Cir. 2008)(Ebel, J.)(quoting Massachusetts v. EPA, 549
U.S. 497, 539 (2007)). 	“[A] suit does not present a Case or Controversy unless the plaintiff
satisfies the requirements of Article III standing.” San Juan Cnty. v. United States, 503 F.3d at
1171. To establish standing, a plaintiff must show three things: “(1) an injury in fact that is both
concrete and particularized as well as actual or imminent; (2) a causal relationship between the
injury and the challenged conduct; and (3) a likelihood that the injury would be redressed by a
favorable decision.” 	Protocols, LLC v. Leavitt, 549 F.3d 1294, 1298 (10th Cir. 2008)(Hartz,
J.)(internal quotation marks omitted). Finally, “[s]tanding is determined as of the time the action
is brought.” Smith v. U.S. Court of Appeals, for the Tenth Circuit, 484 F.3d 1281, 1285 (10th Cir.
2007)(Seymour, J.)(quoting Nova Health Sys. v. Gandy, 416 F.3d 1149, 1154 (10th Cir.
2005)(Ebel, J.)).
LAW REGARDING STANDING AND INTERVENTION
Because “standing implicates a court's jurisdiction, [and] requires a court itself to raise and
address standing before reaching the merits of the case before it,” the court must resolve the Article
Case 1:23-cv-00296-JB-LF Document 119 Filed 11/24/25 Page 18 of 29

- 19 -
III standing requirements. San Juan Cnty. v. United States, 503 F.3d at 1172 (quoting San Juan
Cnty. v. United States, 420 F.3d 1197, 1205 n.3 (10th Cir. 2005)). 	The Tenth Circuit held that
“parties seeking to intervene under rule 24(a) or (b) need not establish Article III standing ‘so long
as another party with constitutional standing on the same side as the intervenor remains in the
case.’” San Juan Cty. v. United States, 503 F.3d at 1172 (quoting San Juan Cty. v. United States,
420 F.3d at 1206).
Since the Tenth Circuit decided San Juan County v. United States, “the Supreme Court
modified our ‘piggyback standing’ rule, holding that an intervenor as of right must ‘meet the
requirements of Article III if the intervenor wishes to pursue relief not requested’ by an existing
party.” Kane Cnty. v. United States, 928 F.3d 877, 886-87 (10th Cir. 2019). In Town of Chester,
New York v. Laroe Estates, Inc., 581 U.S. 433 (2017), the record was ambiguous whether the
intervening plaintiff was seeking a different form of relief from the existing plaintiff: a separate
award of money damages against the same defendant in its own name. 	581 U.S. at 440-42.
Because “[a]t least one [litigant] must have standing to seek each form of relief requested,” the
Supreme Court remands the case for the United States Court of Appeals for the Second Circuit to
determine whether the intervenor, in fact, seeks “additional relief beyond” what the plaintiff
requests. Kane Cnty. v. United States, 928 F.3d at 886-87 (quoting Town of Chester, New York
v. Laroe Estates, Inc., 581 U.S. at 440-42). With regard to a settlement agreement, the Court has
holds that, “if the original parties to the case settle all the claims between them and the intervenor
wishes to challenge the settlement, however, the intervenor is then required to establish
independent standing under Article III of the United States Constitution.” WildEarth Guardians
v. United States Forest Serv., 778 F. Supp. 2d 1143, 1151 (D.N.M. 2011)(Browning, J.)(citing
City 	of 	Colo. 	Springs 	v. 	Climax 	Molybdenum 	Co., 	587 	F.3d 	1071, 	1081 	(10th 	Cir.
2009)(“Intervenors must show independent standing to continue a suit if the original parties on
Case 1:23-cv-00296-JB-LF Document 119 Filed 11/24/25 Page 19 of 29

- 20 -
whose behalf intervention was sought settle or otherwise do not remain adverse parties in the
litigation.”)(quoting Dillard v. Chilton County Comm'n, 495 F.3d 1324, 1330, 1336 (11th Cir.
2007).
ANALYSIS
The Court undertakes its analysis in three sections. 	First, it concludes that Santa Ana
Pueblo may intervene as of right, because it satisfies the rule 24(a)(2) requirements. Second, it
concludes that Santa Ana Pueblo may intervene permissively, because it satisfies the rule 24(b)
requirements. 	Third, the Court concludes that Santa Ana Pueblo meets the Article III standing
requirements. The Court limits, however, Santa Ana Pueblo’s intervention to filing a brief on the
Federal Defendants’ MTD rather than allowing Santa Ana Pueblo to file a separate motion to
dismiss.
I. 	SANTA ANA PUEBLO MAY INTERVENE AS OF RIGHT.
In addition to filing a timely motion to intervene, a movant who lacks an unconditional
statutory right to intervene must satisfy the following three criteria to qualify for intervention of
right: (i) the movant must have an interest in the litigation’s subject matter; (ii) the movant’s
interest will be impaired or impeded if the movant is not allowed to intervene; and (iii) the
litigation’s existing parties do not represent adequately the movant’s interest. See Fed. R. Civ. P.
24(a)(2). 	The Court concludes that Santa Ana Pueblo may intervene as of right, because the
Motion is timely, and Santa Ana Pueblo satisfies the three rule 24(a)(2) elements.
A. THE MOTION TO INTERVENE IS TIMELY, AND SANTA ANA PUEBLO HAS A
PROTECTIBLE INTEREST IN THIS LITIGATION.
Although San Felipe Pueblo does not concede any rule 24(a) elements, it does not dispute
whether Santa Ana’s Motion is timely or whether Santa Ana has a protectible interest in this
litigation’s subject matter. See generally Response at 1-16. The Motion is timely, because Santa
Case 1:23-cv-00296-JB-LF Document 119 Filed 11/24/25 Page 20 of 29

- 21 -
Ana seeks leave to intervene before any significant activity occurs in the case. See Motion at 8.
Although San Felipe Pueblo believes that Santa Ana Pueblo files its motion to intervene
strategically to coincide with San Felipe’s briefing obligation in relation to the Federal Defendants’
motion to dismiss, San Felipe Pueblo concedes that there is no extreme prejudice to San Felipe
Pueblo arising from the timing of Santa Ana Pueblo’s application for limited intervention. 	See
Response at 3. Accordingly, the Motion is timely. 	Santa Ana Pueblo asserts an interest in the
underlying litigation, because it stands to lose approximately 564 acres of its land. See Motion at
7. San Felipe Pueblo concedes this point in saying: “Denying that Santa Ana has an interest would
be disingenuous as no single entity could benefit more from the Federal Defendants’ improper and
void actions than Santa Ana Pueblo.” Response at 3. Santa Ana Pueblo therefore has an interest
in the litigation.
Although San Felipe Pueblo concedes that Santa Ana has an interest in the underlying
litigation, it argues that Santa Ana Pueblo has no interest in San Felipe’s Second, Fourth, and Fifth
Claims, because those claims concern only the United States’ payment of monies from a trust
account to Santa Ana Pueblo and seek recovery from the United States, and not from Santa Ana
Pueblo. 	See Response at 3-4. 	Santa Ana Pueblo counters that this argument fails because San
Felipe can prevail on its Second, Fourth, and Fifth Claims only if it first prevails on its First and
Third Claims -- that is, only if the Court determines that San Felipe holds superior title to the
disputed land. See Reply at 2 n.1. The Court agrees with Stana Ana Pueblo’s logic.
“The movant's claimed interest is measured in terms of its relationship to the property or
transaction that is the subject of the action, not in terms of the particular issue before the district
court.” WildEarth Guardians v. Nat'l Park Serv., 604 F.3d at 1198 (citing Utah Ass'n of Cntys. v.
Clinton, 255 F.3d 1246, 1252 (10th Cir. 2001)). Here, Santa Ana Pueblo’s asserted interest relates
Case 1:23-cv-00296-JB-LF Document 119 Filed 11/24/25 Page 21 of 29

- 22 -
to the property that is this action’s subject. Because Santa Ana Pueblo currently claims possession
of the disputed land, it has a direct and substantial interest in the litigation.
B. THIS 	LITIGATION 	MAY AFFECT ADVERSELY 	SANTA ANA 	PUEBLO’S
INTEREST.
Regarding impairment of interest, the Court concludes that this litigation adversely may
affect Santa Ana Pueblo’s interests. 	“Establishing the potential impairment of such an interest
presents a minimal burden, and such an impairment may be contingent upon the outcome of [ ]
litigation.” 	Kane Cnty. v. United States, 928 F.3d 877, 891 (10th Cir. 2019). 	Here, San Felipe
Pueblo seeks to overturn the Federal Defendants’ administrative actions that clear the cloud from
Santa Ana Pueblo’s title and to have the Court determine title to the disputed land in its favor. See
Reply at 5. If the Court enters judgment for San Felipe Pueblo, Santa Ana Pueblo’s current title to
the disputed tract again will be in question. See Reply at 5. This showing satisfies the minimal
burden for establishing potential impairment.
San Felipe Pueblo nevertheless contends that this litigation will not affect adversely Santa
Ana Pueblo’s interests, because only Congress has the authority to alter Pueblo boundaries. See
Response at 6. Relying on Babcock & Wilcox Co. v. Parsons Corp., 430 F.2d 531 (8th Cir. 1970),
San Felipe Pueblo argues that there is no impairment when a party would not be bound by the
judgment and could pursue its claims in a separate action. See Response at 6 (citing Babcock &
Wilcox Co. v. Parsons Corp., 430 F.2d 531 (8th Cir. 1970). 	It thus maintains that Santa Ana
Pueblo’s interests remain intact, because, even if San Felipe Pueblo prevails, Santa Ana Pueblo
may petition Congress to correct the Pueblo boundaries through proper channels. See Response
at 6. The Court is unpersuaded.
Even if Santa Ana Pueblo can seek relief in future proceedings, the availability of
alternative forums does not bar intervention. The Tenth Circuit holds that “the mere availability
Case 1:23-cv-00296-JB-LF Document 119 Filed 11/24/25 Page 22 of 29

- 23 -
of alternative forums is not sufficient to justify denial of a motion to intervene because ‘at most,’
participating in a new proceeding ‘would not provide the level of protection to the intervenors’
interests that the current plan offers.” WildEarth Guardian v. Nat’l Park Serv., 604 F.3d 1192, 1199
(10th Cir. 2010)(citing Utah Ass’n of Counties v. Clinton, 255 F.3d 1246, 1254 (10th Cir. 2001)).
For example, “the interest of a prospective defendant-intervenor may be impaired where a decision
in the plaintiff’s favor would return the issue to the administrative decision-making process,
notwithstanding the prospective intervenor’s ability to participate in formulating any revised
[decision].” WildEarth Guardian v. Nat’l Park Serv., 604 F.3d at 1199 (see also Nat. Res. Def.
Council v. Costle, 561 F.2d 904, 910 (D.C. Cir. 1977)(“It is not enough to deny intervention under
Rule 24(a)(2) because applicants may vindicate their interests in some later, albeit more
burdensome, litigation.”). The Court therefore concludes that the litigation may affect adversely
Santa Ana Pueblo’s interest.
C. THE FEDERAL DEFENDANTS DO NOT REPRESENT ADEQUATELY SANTA
ANA’S INTERESTS.
Regarding adequate representation, the Court concludes that the Federal Defendants do not
represent adequately Santa Ana Pueblo’s interests. 	To establish inadequate representation, “the
possibility of divergence of interest need not be great,” and the showing “is easily made when the
representative party is the government.” Kane Cnty., 928 F.3d at 894 (citing Nat. Res. Def. Council
v. Costle, 578 F.2d at 1346; Utah Ass’n of Counties v. Clinton, 255 F.3d at 1254). For example, in
WildEarth Guardian v. Nat’l Park Serv., the Tenth Circuit permits an environmental group to
intervene as of right, explaining that, “[i]n litigating on behalf of the general public, the
government is obligated to consider broad spectrum of views, may of which may conflict with the
particular interest of the would-be intervenor.” 604 F.3d at 994-97.
Case 1:23-cv-00296-JB-LF Document 119 Filed 11/24/25 Page 23 of 29

- 24 -
Santa Ana demonstrates that the Federal Defendants do not adequately represent its
interests. On August 18, 2023, the Federal Defendants file a Motion to Dismiss acknowledging
that the United States recognizes San Felipe Pueblo’s title to portions of Private Claims Four, Five,
and Six that extend into the disputed land. 	See Motion at 11-12. 	Santa Ana Pueblo, however,
opposes that position, asserting that “San Felipe does not now and never has had title to those
portions of those private claims.” 	Motion at 11-12. 	Because the Federal Defendants’ position
conflicts with Santa Ana Pueblo’s, they do not represent adequately Santa Ana Pueblo’s interests.
San Felipe Pueblo nevertheless contends that the Federal Defendants adequately represent
Santa Ana Pueblo’s interests, because they purportedly share an identical objective. See Response
at 7. Relying on Tri-State Generation & Transmission Ass’n, Inc. v. New Mexico Pub. Regulation
Comm’n, 787 F.3d 1068 (10th Cir. 2015), San Felipe Pueblo argues that adequacy is presumed
when “the objective of the applicant for intervention is identical to that of one of the parties.” 787
F.3d at 1072. San Felipe Pueblo maintains that the shared objective here is to uphold the Federal
Defendants’ actions in the underlying lawsuit. See Response at 7. This argument is not sound,
because the Federal Defendants and Santa Ana Pueblo do not share identical objectives. 	In Tri
State Generation and Transmission Ass’n Inc., the defendants and the intervenor share identical
objectives, because they file nearly identical pleadings and raise “essentially the same arguments.”
787 F.3d at 1071. Here, by contrast, Santa Ana Pueblo disputes the Federal Defendants’ position
that San Felipe Pueblo holds title to portions of Private Claims Four, Five, and Six -- claims that
Santa Ana asserts jeopardize its own title to those parcels. See Reply at 10. Thus, their objectives
diverge, and the Federal Defendants cannot be said to represent Santa Ana’s interests adequately.
Having determined that Santa Ana Pueblo satisfies all rule 24(a) elements, the Court
concludes that Santa Ana Pueblo may intervene as of right. 	Because Santa Ana seeks limited
intervention, and the Court concludes intervention appropriate, Santa Ana Pueblo may file a brief
Case 1:23-cv-00296-JB-LF Document 119 Filed 11/24/25 Page 24 of 29

- 25 -
addressing the Federal Defendants’ Motion to Dismiss but may not file a separate motion to
dismiss. The Court has limited resources and is trying to address one motion to dismiss without
modifying the pending motions. The Court can address all the parties briefing and issues on the
one motion to dismiss. Santa Ana Pueblo’s brief shall explain its position on sovereign immunity.
San Felipe and the Federal Defendants may file responses if they wish. The purpose of this limited
intervention is to aid the Court in determining whether it has jurisdiction; if further intervention
becomes necessary, the Court will address that issue in due course.
II. 	SANTA ANA PUEBLO MAY PERMISSIVELY INTERVENE.
Santa Ana Pueblo also meets the standard for permissive intervention under rule 24(b).
Rule 24(b) provides that a court may allow permissive intervention when: “(i) the application to
intervene is timely; (ii) the applicant’s claim or defense and the main action have a question of law
or fact in common; and (iii) intervention will not unduly delay or prejudice the adjudication of the
original parties’ rights.” 	Forest Guardians v. U.S. Dep’t of Interior, No 02-1003 JB, 2004 WL
3426413, at 10-11 (D.N.M. 2004)(Browning, J.). As discussed above, San Felipe Pueblo does not
dispute whether Santa Ana Pueblo’s Motion is timely. See generally Response at 1-16. Indeed,
the Motion is timely because Santa Ana Pueblo seeks leave to intervene before any significant
activity occurs in the case. And although San Felipe Pueblo believes that Santa Ana Pueblo files
its Motion strategically to coincide with San Felipe Pueblo’s briefing obligation in relation to the
Federal Defendants’ motion to dismiss, San Felipe Pueblo concedes that there is no extreme
prejudice to San Felipe Pueblo arising from the timing of Santa Ana Pueblo’s application for
limited intervention. 	See Response at 3. This leaves only the question whether the applicant’s
claim or defense and the main action have a question of law or fact in common.
Santa Ana Pueblo satisfies this requirement. Santa Ana Pueblo’s defenses -- and its limited
proposed participation -- turn on the same central question of law and fact that animates San Felipe
Case 1:23-cv-00296-JB-LF Document 119 Filed 11/24/25 Page 25 of 29

- 26 -
Pueblo’s suit: which Pueblo holds valid title to the approximately 564 acres of disputed land. San
Felipe Pueblo’s Claims seek a declaration that it holds superior title and challenge the Federal
Defendants’ administrative actions that cleared the cloud from Santa Ana Pueblo’s title. 	See
Complaint, Prayer for Relief ¶¶ (a)-(i), at 64-65. Santa Ana Pueblo, for its part, seeks to defend
the legitimacy of the same administrative actions and to preserve its own title to that same tract.
See Motion at 8-11. 	Both sets of arguments thus hinge on the same factual history, the same
private-land-grant boundaries, and the same legal principles governing Pueblo land title and
federal authority. 	Because the main action and Santa Ana Pueblo’s defenses rise or fall on the
same title determination, they share common questions of law and fact within the meaning of rule
24(b). Permissive intervention is therefore appropriate.
III. 	SANTA ANA PUEBLO HAS ARTICLE III STANDING.
The Court concludes that Santa Ana has Article III standing and that intervention therefore
is appropriate. To seek relief in federal court, a party must demonstrate Constitutional standing.
See Bennett v. Spear, 520 U.S. 154, 162 (1997). A prospective intervenor must show: (i) injury in
fact; (ii) causation; and (iii) redressability. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61
(1992). To establish injury-in-fact, the injury alleged by the intervening party must be “concrete
and particularized” and “actual or imminent, not conjectural or hypothetical.” Lujan v. Defs. Of
Wildlife, 504 U.S. at 560. To establish causation, the claimed injury must be fairly traceable to
the challenged action and not the result of the independent action of some third party not before
the court. See Lujan v. Defs. Of Wildlife, 504 U.S. at 560. To establish redressability, it must be
likely, as opposed to merely speculative, that the court’s favorable decision will redress the injury.
See Lujan v. Defs. Of Wildlife, 504 U.S. at 561. 	When a party seeks to intervene to defend
governmental action, it must also show that it would be “injured in fact by the setting aside of the
government’s action it seeks to defend, that this injury could be caused by the invalidation, and the
Case 1:23-cv-00296-JB-LF Document 119 Filed 11/24/25 Page 26 of 29

- 27 -
injury would be prevented if the government action is upheld.” Forest Cnty. Potawatomi Cmty. v.
United States, 317 F.R.D. 6, 11 (D.D.C. 2016).
Santa Ana Pueblo meets this standard. San Felipe Pueblo challenges a federal action that
grants Santa Ana Pueblo title to the disputed land more than a century ago. See Motion at 7. San
Felipe Pueblo not only seeks to invalidate that action, but also seeks a declaration that it holds title
to the same land. See Motion at 7. If successful, San Felipe Pueblo’s claims will cause Santa Ana
Pueblo to lose approximately 564 acres that Santa Ana Pueblo currently holds. See Motion at 7.
This injury is concrete and particularized, directly traceable to San Felipe Pueblo’s requested relief,
and upholding the federal actions redress this injury. Santa Ana Pueblo therefore has Article III
standing to intervene.
San Felipe Pueblo’s sole counterargument is that Santa Ana Pueblo’s asserted interest is
not legally cognizable. See Response at 4. San Felipe Pueblo contends that the Pueblo Land Act
extinguishes Santa Ana Pueblo’s right to claim title based on pre-Algodones and Brown facts,
because Santa Ana Pueblo does not file any action before the statute of limitations expires on May
31, 1934. See Response at 4 (citing United States v. Thompson, 941 F.2d 1074, 1081 (10th Cir.
1991)). This argument is not sound, because it goes to the underlying action’s merits rather than
the threshold standing inquiry. To succeed on a motion to intervene, the proposed-intervenor must
prove: (i) injury-in-fact, (ii) causation, and (iii) redressability. See Lujan v. Defs. Of Wildlife, 504
U.S. at 560-61. 	The standard does not require a showing of success on the merits. 	The Tenth
Circuit’s “liberal approach to intervention” further supports this conclusion. Kane Cnty., Utah v.
United States, 928 F.3d at 890. In the related context of rule 19 joinder, the Tenth Circuit insists
that “the underlying merits of the litigation are irrelevant.” Davis ex rel. Davis v. United States,
343 F.3d 1282, 1291 (10th Cir. 2003). Accordingly, the Court concludes that Santa Ana Pueblo
has Article III standing sufficient to permit intervention.
Case 1:23-cv-00296-JB-LF Document 119 Filed 11/24/25 Page 27 of 29

- 28 -
IT IS ORDERED that: the (i) Motion for Limited Intervention as of Right in Order to File
Motion to Dismiss, and Memorandum In Support, filed September 8, 2023 (Doc. 32), is granted
in part and denied in part; (ii) the Pueblo of Santa Ana may file a brief on the Federal Defendants’
Motion to Dismiss and Memorandum In Support, filed August 18, 2023 (Doc. 29); and (iii) the
Pueblo of Santa Ana may not file its own motion to dismiss.
________________________________
UNITED STATES DISTRICT JUDGE
Counsel:
Annette T. Brown
Timothy J. Humphrey, Sr.
Stetson Law Offices, P.C.
Albuquerque, New Mexico
-- and --
Tim Hennessy
Steven J. Bloxham
Peebles Kidder Bergin & Robinson
Sacramento, California
-- and --
Rebecca L. Kidder
Peebles Kidder Bergin & Robinson
Rapid City, South Dakota
Attorneys for the Plaintiff
Evan C. Blackstone
Attorney
Office of the Solicitor
United States Department of the Interior
Albuquerque, New Mexico
-- and --
Matthew Marinelli
Senior Attorney
Case 1:23-cv-00296-JB-LF Document 119 Filed 11/24/25 Page 28 of 29

- 29 -
Environmental & Natural Resources Division
United States Department of Justice
Washington, D.C.
Attorneys for the Defendants
Richard W. Hughes
Allison K. Athens
Rothstein Donatelli LLP
Santa Fe, New Mexico
Attorneys for the Intervenor Defendant
Case 1:23-cv-00296-JB-LF Document 119 Filed 11/24/25 Page 29 of 29