Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. RG05211597
Jones, P.J.
Walter H. Eason, Jr., in propria persona, appeals the order denying his motion for leave to intervene in the action of the Karuk Tribe of California (Karuk Tribe) against the California Department of Fish and Game (Department) for declaratory and injunctive relief. The Karuk Tribe’s action alleges violations of the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.) pertaining to the Department’s issuance of suction dredge mining permits under Fish and Game Code sections 5653 and 5653.9 and California Code of Regulations, title 14, section 228 et seq. We affirm.
Suction dredging is the use of a suction system to remove and return materials from the bottom of a stream, river or lake for the extraction of minerals. (Cal. Code Regs., tit. 14, § 228.) Any person who operates such a system is required to have a suction dredge permit in his or her immediate possession. These permits issue for one year. (Cal. Code Regs., tit. 14, § 228.)
BACKGROUND
On May 6, 2005, the Karuk Tribe and Leaf Hillman, vice-chairman of the Karuk Tribe, filed a complaint for declaratory and injunctive relief against the Department and its director. The action challenged the Department’s practice of issuing permits for suction dredge mining in and along the Salmon, Scott and Klamath Rivers and their tributaries in Siskiyou County. The Karuk Tribe alleged that such mining imperiled a state and federally listed threatened species, the Coho salmon, and other fish listed by the Department as species of special concern that inhabit the rivers. It further alleged that the Department’s practice violated CEQA and the statutory mandate that suction dredge permits not be deleterious to fish (Fish & Game Code, § 5653, subd. (b)).
The Karuk Tribe sought a declaration that the Department’s current pattern and practice of issuing permits violated these laws. It also sought an injunction requiring the Department to apply to Coho salmon and other “special concern” species of fish the mitigation measure it previously concluded was necessary under CEQA to prevent significant impact to special status species, to wit, closure of the rivers inhabited by these species. Alternatively, it sought an injunction against the issuance of suction dredge mining permits until the Department complied with the CEQA requirements that the Department first evaluate and mitigate the impact of the permits on Coho salmon and the other species of “special concern.”
As of December 1, 2005, the Karuk Tribe and the Department reached a settlement of the action. They agreed that the court would enter a stipulated judgment that the Department would be enjoined from issuing any suction dredge mining permits on the three designated rivers, their tributaries, and adjacent thermal refugia during certain months of the year until the Department adopted amendments to its suction dredge mining permit regulations that addressed such mining in these areas.
On December 16, 2005, the New 49’ers, Inc., and Raymond Koons (collectively, the Miners) moved to intervene in the Karuk Tribe/Department action. They asserted they had an interest in the action because they held federally-established possessory property and contract rights in approximately 60 miles of the subject river and streambeds “to which the existing parties apparently propose to fully or partially bar access for ongoing mining activity.”
On January 10, 2006, the Miners filed objections to the proposed stipulated judgment. On January 11, 2006, the Tribe and the Department filed a joint stipulation for entry of the judgment.
On February 9, 2006, the court granted the Miners’ motion for leave to intervene, pursuant to Code of Civil Procedure section 387 (hereafter section 387), subdivision (a). It concluded that an ex parte entry of the stipulated judgment was inappropriate in light of the Miners’ entry into the action, but it did not preclude the Karuk Tribe and Department from resubmitting a motion for entry of judgment and any opposition thereto.
On February 14, 2006, the Miners filed their complaint in intervention. They alleged that they lease over 60 miles of mining claims in Siskiyou County, including claims on the Salmon and other rivers, on behalf of more than 1,000 members. The gravamen of their complaint was that they would be prevented from developing the minerals on their property and would risk having their mining claims cancelled if, by injunction, suction dredge mining is prohibited on their claims.
The same day the Karuk Tribe moved for entry of the stipulated judgment.
On February 24, 2006, Gerald Hobbs moved to intervene in the Karuk Tribe/Department action and to join in the Miners’ objection to the stipulated judgment. He asserted that the Department had already promulgated the regulations proposed in the stipulated judgment; that he had filed a CEQA action in the Sacramento Superior Court challenging the regulations as unnecessarily precluding him from mining his two mining claims and making a living therefrom; and that he would be further harmed if the stipulated judgment was entered because it could foreclose the court in his Sacramento CEQA action from awarding him the injunctive relief he requested, regardless of the merits of his action, and that even if the relief he requested were granted, it would be an idle act, because the Department would not have to comply. He also asserted he was “an Ad Hoc Committee Member to the Ad Hoc Committee for the Promulgation of Suction Dredge Regulations” for the Department and was president of “Public Lands for the People, Inc., a non-profit organization representing more than 40,000 small miners.”
On March 1, 2006, the Department moved for entry of the stipulated judgment.
On March 22, 2006, the court issued a tentative ruling that expressed concern that the injunction included in the stipulated judgment was permanent and of indefinite duration, and that the Department had made no binding commitment to conduct a rulemaking to consider changes to its regulations. In response, the Karuk Tribe and the Department presented a revised stipulated judgment at the March 23, 2006 hearing. It contained a commitment by the Department to conduct a rulemaking within 120 days of the court’s entry of the stipulated judgment, and it limited the interim injunction to one year from the date the rulemaking would commence. The same day the court granted Hobbs’s motion to intervene pursuant to section 387, subdivision (a), with intervention limited to the issues raised in the original complaint in the action. It also took the motions of the Karuk Tribe and Department for entry of the revised stipulated judgment under submission.
On April 18, 2006, the court ordered all parties to submit additional briefing to address the impact, if any, of a recent Court of Appeal decision on the issues in the instant case by May 8. The motion for entry of the stipulated judgment was again taken under submission on May 8, following the filing of the parties’ supplemental briefs.
On May 22, 2006, appellant first moved for leave to intervene pursuant to section 387, subdivisions (a) and (b) and to file opposition to entry of the stipulated judgment. He stated that he has two mining claims located in the subject area, that he has previously held suction dredge permits and intended to acquire one in 2006, and that the new regulations contained in the revised proposed stipulated judgment would preclude him from mining either claim for one year and 120 days or possibly longer. He also stated that interveners Hobbs and the Miners refused his May 8-10, 2006 requests to amend their complaints in intervention to add the new affirmative defenses he “discovered” on May 5, 2006.
The Karuk Tribe and the Department opposed his motion on the grounds it was untimely; his interests did not differ appreciably from interveners Hobbs and the Miners who adequately represented his interests; he had neither recognizable interests related to the subject of the action for purposes of intervention as a matter of right nor a direct, immediate interest in the matter in litigation for purposes of permissive intervention; he sought to expand the issues raised by the original parties; his interest did not outweigh the original parties’ interest in conducting the litigation on their own terms; and the delay resulting from his intervention at this stage of the proceedings would cause hardship to the parties.
On June 8, 2006, the court denied appellant’s motion to intervene. It concluded there were no grounds for mandatory intervention (§ 387, subd. (b)). It denied permissive intervention (§ 387, subd. (a)) on the grounds (1) a motion to enter judgment in the action had already been fully briefed and argued and was under submission; (2) two other parties, i.e., the Miners and Hobbs, with the same interests as appellant, had already been permitted to intervene and had participated in the briefing; and (3) appellant had been aware of and actively involved in activity related to the litigation since at least December 2005 but did not seek leave to intervene until May 2006.
DISCUSSION
Standard of Review
Section 387, subdivision (a) permits any person who has an interest in the matter in litigation, in the success of either of the parties, or an interest against the parties, to intervene in the action. Intervention pursuant to subdivision (a) is commonly referred to as permissive intervention. (Hodge v. Kirkpatrick Development, Inc. (2005) 130 Cal.App.4th 540, 547.)
Section 387, subdivision (b) states that the court shall permit a person to intervene if any provision of law confers an unconditional right to intervene or if the person claims an interest relating to the property or transaction that is the subject of the action and that person is so situated that the disposition of the action may, as a practical matter, impair or impede his ability to protect that interest unless his interest is adequately represented by existing parties. Intervention pursuant to subdivision (b) is commonly referred to as mandatory intervention. (Hodge v. Kirkpatrick Development, Inc., supra, 130 Cal.App.4th at p. 547.)
An order denying permissive intervention is reviewed under the abuse of discretion standard, because the decision is best determined on the particular facts of each case and so generally left to the trial court’s sound discretion. (City and County of San Francisco v. State of California (2005) 128 Cal.App.4th 1030, 1036.) Although no court has stated so explicitly, many decisions have impliedly held that the grant or denial of a claim of an unconditional right to intervene, i.e., mandatory intervention, is reviewed de novo. (See, e.g., Hodge v. Kirkpatrick Development, Inc., supra, 130 Cal.App.4th at pp. 548-550; Mylan Laboratories, Inc. v. Soon-Shiong (1999) 76 Cal.App.4th 71, 78-80; California Physicians’ Service v. Superior Court (1980) 102 Cal.App.3d 91, 96-98.)
This implied holding appears logical because a court is obligated to allow intervention when the subdivision (b) criteria are met. Therefore, the appellate court would accept the trial court’s resolution of any factual disputes if supported by substantial evidence and then apply de novo the rules governing mandatory intervention to those facts (or to undisputed facts). Here we need not decide definitively the standard applicable to mandatory intervention because we reach the same conclusion under either the de novo or abuse of discretion standard.
Mandatory Intervention
The critical question in determining a right to intervene is whether the person seeking to intervene has an interest “relating to the property or transaction that is the subject of the action . . .” (Mylan, supra, 76 Cal.App.4th at p. 78; California Physicans’ Service, supra, 102 Cal.App.3d at p. 96.) Appellant asserts that his property rights to the two mining claims he owns in the Salmon/Scott/Klamath Rivers area entitle him to intervention.
While a mining claim may be a property interest (see Board of Supervisors v. Lonergan (1980) 27 Cal.3d 855, 860), there is no mining claim that is the subject of the Karuk Tribe/Department action. Indeed, this action does not have any property as its subject. The subject of the action is the Department’s alleged noncompliance with the state laws and regulations that require it to consider the impact of suction dredge mining on certain fish when issuing annual suction dredge mining permits.
Nor can appellant claim an interest relating to the “transaction” that is the subject of the Karuk Tribe/Department action. A transaction is commonly defined as “the act or instance of conducting business or other dealings, esp. the formation, performance or discharge of a contract; something performed or carried out” (Black’s Law Dict. (8th ed. 2002) p. 1535, col. 1); “something transacted, esp. an exchange or transfer of goods, services or funds” (Webster’s 10th New Collegiate Dict. (2001) p. 1248). The Department has statutory authority to perform the act of issuing suction dredge mining permits, but it is also charged with adhering to particular laws and regulations before issuing them. Broadly speaking, the “transaction” that is the subject of the Karuk Tribe/Department action is the Department’s act of complying, or failing to comply, with these statutes and regulations governing the issuance of suction dredge mining permits. As discussed in the next section, appellant may have an interest in the consequences of a determination of noncompliance by the Department, but he does not have an interest related to this “transaction” itself, i.e., the Department’s performance of applying the applicable laws to the issuance of permits.
Because the subject of the Karuk Tribe/Department action concerns neither property nor a transaction in which appellant has a related interest, appellant does not have right of intervention in the action.
Given this conclusion, we need not address appellant’s contention that he has a right to intervene because interveners Hobbs and the Miners cannot adequately represent him in the action. A right to intervention requires both an interest in the property or transaction that is the subject of the action “and” that the prospective intervener is so situated that the disposition of the action may impair his ability to protect that interest, absent adequate representation by an existing party. (§ 387, subd. (b).) Insofar as one of these elements is missing in this case, a prerequisite for mandatory intervention is absent.
Permissive Intervention
The trial court has discretion to permit a nonparty to intervene when the proper procedures have been followed; the nonparty has a direct and immediate interest in the action; the intervention will not enlarge the issues in the litigation; and the reasons for intervention outweigh any opposition by the current parties to the action. (Reliance Ins. Co. v. Superior Court (2000) 84 Cal.App.4th 383, 386; People ex rel. Rominger v. County of Trinity (1983) 147 Cal.App.3d 655, 660-661.) Intervention is appropriately denied when the reasons therefor are outweighed by the rights of the original parties to conduct the lawsuit on their own terms. (147 Cal.App.3d at p. 661.)
a. Timing
Proper procedures include a “timely” application to intervene. (§ 387, subd. (a).) “Timely,” for purposes of this statute, is “a reasonable time,” which the court determines by considering the conduct and situation of the parties, the nature of the transaction, and the particular circumstances of each case. (Sawday v. Vista Irrigation Dist. (1966) 64 Cal.2d 833, 836; In re Yokohama Specie Bank (1948) 86 Cal.App.2d 545, 555-556.) Here, the Tribe filed its action on May 6, 2005. Appellant’s motion for leave to intervene does not state when he first learned of the action, only that he became aware of the proposed stipulated judgment on December 20, 2005. Even assuming he was wholly unaware of the action until December 2005, he waited another five months, until May 22, 2006, to intervene in an action that was already in its final stages. Moreover, he made no assertion that seeking an earlier intervention was an impossibility.
b. Direct Interest
To support permissive intervention, the proposed intervener’s interest in the matter in litigation must be direct, not consequential. It must also be an interest which is proper to be determined in the action in which the intervention is sought. (Continental Vinyl Products Corp. v. Mead Corp. (1972) 27 Cal.App.3d 543, 549.) “A person has a direct interest justifying intervention in litigation where the judgment in the action of itself adds to or detracts from his legal rights without reference to rights and duties not involved in the litigation.” (Ibid.) Conversely, the person’s “interest is consequential and thus insufficient for intervention when the action in which intervention is sought does not directly affect [the person’s interest], although the results of the action may indirectly benefit or harm its owner.” (Id. at p. 550.)
By these criteria, appellant does not have such a direct interest justifying intervention. The proposed judgment would effectively hold that the Department failed to comply with applicable laws in issuing suction dredge mining permits, and it would incorporate revised permit regulations that comport with those laws. While this judgment might restrict the methods appellant can employ to exercise his mining claim rights, it does not, standing alone, detract from those rights. He retains those rights regardless of the judgment.
c. Expansion of Original Issues
Appellant’s proposed complaint in intervention alleged that the State of California was immune from the Karuk Tribe’s action under the Eleventh Amendment of the United States Constitution and that the Department had no authority to waive that immunity. No issue of immunity was raised in the Karuk Tribe’s complaint, the Department’s answer, or the complaints in intervention of Hobbs and the Miners. Issues of sovereign immunity can be complex and would have significantly expanded the issues as already framed and briefed by the parties. Furthermore, it is highly unlikely that if there were any possibility the State was immune from the Karuk Tribe’s action, the Department--presumably a State agency very familiar with the interplay of federal and state laws pertinent to protection of aquatic fauna, Native American rights, and land use--would not have asserted the defense at the outset of the litigation.
We recognize it would be unlikely the Karuk Tribe’s complaint would have done so unless it strongly anticipated an immunity defense, and the Karuk Tribe believed that a prompt affirmative assertion that the defense was unavailing was a good strategy.
Appellant’s extended appellate argument as to the trial court’s lack of subject matter jurisdiction is not properly before us. Once a person has become an actual party to an action by virtue of an order authorizing his intervention, he may raise certain procedural questions not raised by an original party, such as objections to the court’s jurisdiction. (Deutschmann v. Sears, Roebuck & Co. (1982) 132 Cal.App.3d 912, 916.) Because the trial court denied his motion to intervene, appellant is not a party to the Karuk Tribe/Department action. He therefore lacks standing to challenge the court’s jurisdiction.
d. Original Parties’ Opposition to Intervention and Right to Conduct Lawsuit
By the time appellant filed his motion for leave to intervene more than one year after the action commenced, the Karuk Tribe and the Department had negotiated over several months and had reached a settlement; Hobbs and the Miners, two other third parties with grounds similar to those of appellant for wanting to intervene in order to challenge the proposed stipulated judgment, had been granted leave to intervene; the original parties and the interveners had submitted briefing on whether the stipulated judgment should be entered; and the court had taken the motion to enter the judgment under submission. For all these reasons the Karuk Tribe and the Department opposed appellant’s intervention. Additionally, as the Department noted, it is the trustee for the public’s fish resources. (Fish & Game Code, §§ 1801, 1802; Pub. Resources Code, § 21070.) As such, it has authority to settle CEQA claims, such as those raised in the Karuk Tribe’s action, when, in its judgment and experience, the settlement will protect those resources entrusted to its care and will redound to the benefit of the public at large. On balance, the Karuk Tribe and the Department’s opposition to appellant’s intervention and their right to conduct this action on their terms outweigh appellant’s reasons for asserting he should be permitted to intervene.
In light of all these circumstances, we find no abuse of discretion in the trial court’s denial of appellant’s motion for leave to intervene. His interest in the Karuk Tribe/Department action was not “ ‘ “of such a direct and immediate character that [he would] gain or lose by the direct legal operation and effect of the judgment. ” ’ [Citations.]” (Fireman’s Fund Ins. Co. v. Gerlach (1976) 56 Cal.App.3d 299, 303.) In any case, most of his claims did not differ materially from those of the other two interveners, and those claims that did differ, i.e., his subject matter jurisdiction challenges, were far outside the scope of the principal issues in the action. The original parties had arrived at what they deemed a fair and reasonable solution for resolving the dispute that generated the action. Permitting appellant’s intervention at such a late stage of the litigation would unnecessarily protract the conclusion of the action.
Conspiracy
Although his contention is not entirely clear, appellant appears to contend that he should have been permitted to intervene because the Department and interveners Hobbs and the Miners conspired with the Karuk Tribe in the Tribe’s failure to “bring in all essential parties.” He argues that if the Karuk Tribe was “truly concerned” in protecting the environment, as it implied by filing the instant action, it would have sought to enjoin “all the users of the subject rivers and streams.” The fact that it did not, he argues, reveals that it did not intend to protect the environment but intended to target suction dredge miners like him to harm them financially. Because appellant did not raise these arguments before the trial court, he is precluded from urging them on appeal. (In re Riva M. (1991) 235 Cal.App.3d 403, 411-412; see also Estate of Westerman (1968) 68 Cal.2d 267, 279.)
DISPOSITION
The order denying appellant’s motion to intervene is affirmed.
We concur: Simons, J. Needham, J.