No. 12-CV-0551WQH (KSC) i 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IGNACIA S. MORENO Assistant Attorney General REUBEN S. SCHIFMAN Trial Attorney Natural Resources Section Environment and Natural Resources Division U.S. Department of Justice P.O. Box 7611 Washington, DC 20044 Tel: (202) 305-0468 Fax: (202) 305-0506 [email protected]Attorneys for the Federal Defendants UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA TIFFANY L. (HAYES) AGUAYO, et al., Plaintiffs, vs. KEN SALAZAR, Secretary of the Department of Interior - United State of America, LARRY ECHO HAWK, Assistant Secretary of the Department of Interior - Indian Affairs - United States of America, AMY DUTSCHKE, Regional Director, Department of Interior - Indian Affairs, Pacific Regional Office, and ROBERT EBEN, Superintendent of the Department of Interior - Indian Affairs, Southern California Agency, in their official capacity; and DOE Defendants 1 through 10, inclusive. Defendants. No. 12-CV-0551WQH (KSC) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF FEDERAL DEFENDANTS’ MOTION TO DISMISS DATE: Aug. 13, 2012 TIME: 11:00 am CTRM: No. 4 JUDGE: Hon. William Q. Hayes [NO ORAL ARGUMENT UNLESS REQUESTED BY THE COURT] Case 3:12-cv-00551-WQH-KSC Document 41-1 Filed 07/09/12 Page 1 of 34
Transcript
No. 12-CV-0551WQH (KSC) i
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IGNACIA S. MORENO Assistant Attorney General REUBEN S. SCHIFMAN Trial Attorney Natural Resources Section Environment and Natural Resources Division U.S. Department of Justice P.O. Box 7611 Washington, DC 20044 Tel: (202) 305-0468 Fax: (202) 305-0506 [email protected] Attorneys for the Federal Defendants
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
TIFFANY L. (HAYES) AGUAYO, et al.,
Plaintiffs,
vs.
KEN SALAZAR, Secretary of the Department of Interior - United State of America, LARRY ECHO HAWK, Assistant Secretary of the Department of Interior - Indian Affairs - United States of America, AMY DUTSCHKE, Regional Director, Department of Interior - Indian Affairs, Pacific Regional Office, and ROBERT EBEN, Superintendent of the Department of Interior - Indian Affairs, Southern California Agency, in their official capacity; and DOE Defendants 1 through 10, inclusive.
Defendants.
No. 12-CV-0551WQH (KSC) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF FEDERAL DEFENDANTS’ MOTION TO DISMISS DATE: Aug. 13, 2012 TIME: 11:00 am CTRM: No. 4 JUDGE: Hon. William Q. Hayes [NO ORAL ARGUMENT UNLESS REQUESTED BY THE COURT]
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No. 12-CV-0551WQH (KSC) ii
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CONTENTS
I. INTRODUCTION .................................................................................................................. 1 II. FACTUAL BACKGROUND ................................................................................................. 1
A. The Pala Band of Missions Indians’ Constitution. ........................................................... 1 B. Pala Band of Mission Indians’ Laws Governing Enrollment. ......................................... 3 C. Procedural History ............................................................................................................ 4
III. STANDARDS OF REVIEW ............................................................................................... 5 IV. ARGUMENT ....................................................................................................................... 6
A. There Has Been No Waiver of the United States’ Sovereign Immunity Under the APA and This Court Lacks Subject Matter Jurisdiction To Hear Plaintiffs’ Claims. ................ 6
1. BIA’s approval of the Band’s Constitution has not been administratively appealed and thus is not reviewable under the APA. ............................................................................. 8 2. BIA’s approval of the Constitution took place outside the APA’s statute of limitations period, and therefore is not reviewable under the APA. ..................................... 10 3. Other BIA actions related to the membership ordinance are not “final agency actions” and therefore are not reviewable under the APA. ................................................... 13
B. Plaintiffs Fail to Establish Subject Matter Jurisdiction or State a Claim Based Upon BIA’s Alleged Violation of a Fiduciary Duty. .......................................................................... 15 C. Plaintiffs Fail to Show Subject Matter Jurisdiction or State a Claim Based Upon the Due Process Clause. .................................................................................................................. 16 D. Absent a Valid, Exhausted APA Claim, the Band is an Indispensable Party that Cannot be Joined Without its Consent. ..................................................................................... 18 E. Discovery is inappropriate. ............................................................................................ 22
V. CONCLUSION ..................................................................................................................... 23
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408 U.S. 564 (1972) ...........................................................................................................16
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) .............................................................................................................6
Bennett v. Spear,
520 U.S. 154 (1997) ...........................................................................................................14
Block v. North Dakota, 461 U.S. 273 (1983) ...........................................................................................................10
California Dep't of Fish and Game v. Quechan Tribe of Indians, 595 F.2d 1153 (9th Cir. 1979) ...........................................................................................20
Camp v. Pitts,
411 U.S. 138 (1973) ...........................................................................................................22
Cedars-Sinai Medical Center v. Shalala, 125 F.3d 765 (9th Cir.1997) ..............................................................................................12
Clinton v. Babbitt,
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Confederated Tribes of Chehalis v. Lujan, 928 F.2d 1496 ) (9th Cir. 1991 ....................................................................................19, 21
Conley v. Gibson,
355 U.S. 41 (1957) ...............................................................................................................6
Ctr. for Biological Diversity v. U.S. Fish & Wildlife Serv., 450 F.3d 930 (9th Cir. 2006) .............................................................................................22
Darby v. Cisneros,
509 U.S. 137 (1993) .............................................................................................................7
Davis v. United States, 199 F. Supp. 2d 1164 (W.D. Okla 2002) .............................................................................9
Dunn & Black, P.S. v. United States, 492 F.3d 1084 (9th Cir. 2007) (1331, 1336) ........................................................................7
Fla. Power & Light Co. v. Lorion,
470 U.S. 729 (1985) ...........................................................................................................22
Gallo Cattle Co. v. U.S. Dep't of Agric., 159 F.3d 1194 (9th Cir. 1998) .............................................................................................7
Irwin v. Dep't of Veterans Affairs, 498 U.S. 89 (1990) .......................................................................................................10, 12
Japanese War Notes Claimants Ass'n v. United States,
373 F.2d 356 cert. denied, 389 U.S. 971 (1967) ................................................................13
Jarvis v. Regan, 833 F.2d 149 (9th Cir. 1987) .............................................................................................23
John R. Sand & Gravel Co. v. United States,
552 U.S. 130 (2008) ...........................................................................................................12
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (1994) .........................................................................................................5, 6
Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306 (1950) ...........................................................................................................17
Norton v. S. Utah Wilderness Alliance ("SUWA"), 542 U.S. 55 (2004) .......................................................................................................14, 22
O'Bannon v. Town Court Nursing Ctr.,
447 U.S. 773 (1980) ...........................................................................................................17
Orchid Biosciences, Inc., v. St. Louis Univ., 198 F.R.D. 670 (S.D. Cal. 2001) .......................................................................................23
Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978) .................................................................................................17, 19, 20
Shoshone Indian Tribe of the Wind River Reservation, Wyo. v. United States, 672 F.3d 1021 (Fed. Cir. 2012)..........................................................................................11
U.S. Catholic Conference v. Abortion Rights Mobilization, Inc., 487 U.S. 72 (1988) .............................................................................................................23
United States ex rel. Hall v. Tribal Dev. Corp., 100 F.3d 476 (7th Cir. 1996) .............................................................................................21
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United States v. Jicarilla Apache Nation, 131 S. Ct. 2313 (2011) .................................................................................................15, 16
United States v. Mitchell,
445 U.S. 535 (1980) .......................................................................................................6, 15
United States v. Mitchell, 463 U.S. 206 (1983) .....................................................................................................15, 16
United States v. Navajo Nation,
556 U.S. 287 (2009) ...........................................................................................................16
United States v. Sams, 521 F.2d 421 (3d Cir. 1975)...............................................................................................13
Fed. R. Civ. P. 12(b)(1)....................................................................................................................5
Fed. R. Civ. P. 19(a)(1)(B)(i) .......................................................................................18, 19, 20, 21
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I. INTRODUCTION
Having had their first two preliminary injunctions denied, Plaintiffs again seek to bring
their intra-Tribal disenrollment dispute into federal court. However Plaintiffs First Amended
Complaint (“FAC”) complaint suffers from some of the same fatal jurisdictional defects—
including failure to exhaust administrative remedies—that were present in their original
complaint. For this reason, the FAC should be dismissed.
Plaintiffs’ FAC brings two related causes of action. The first argues that the Bureau of
Indian Affairs’ (“BIA”) interpretation of the Band’s Constitution and use of the Band’s
enrollment ordinance to provide a recommendation violates Due Process and is arbitrary and
capricious. FAC ¶ 49-511 (p. 9 lines 3-12). The second cause of action also challenges the
BIA’s 2000 approval of the Band’s Constitution, FAC ¶ 50 (p. 9 lines 18-20), and asserts
Defendants are equitably stopped from raising a statute of limitations defense. FAC ¶ 51 (p. 9
lines 21-26).
Plaintiffs seek a declaratory judgment that BIA was arbitrary and capricious in interpreting
the Band’s membership ordinance and approving the Constitution and also seek fees and civil
discovery. FAC p. 10. This relief should not be granted. First, discovery is clearly
inappropriate in this Administrative Procedure Act (“APA”), record-review based suit. And
because the agency actions challenged by the Plaintiffs are have not been appealed
administratively, and are otherwise not “final agency actions” as defined by the APA, the United
States has not waived sovereign immunity under the APA. Even if there were a waiver of
sovereign immunity, however, the Band is an indispensible party that cannot be joined. For
these reasons the Court should dismiss Plaintiffs’ First Amended Complaint.
II. FACTUAL BACKGROUND
A. The Pala Band of Missions Indians’ Constitution.
The Pala Band of Mission Indians (“the Band”) is a federally recognized sovereign tribal
1 There are two paragraphs numbered 50-52. On line 21, page 9, after paragraph 52 the numbering begins again with paragraph 50.
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nation. The Band was formally organized after it officially adopted the Pala Articles of
Association (“Articles”) on November 6, 1960, which were previously approved by the
Commissioner of Indian Affairs on March 7, 1960. The Articles provided, among other things,
that the General Council—consisting of all adult members of the Band (Articles, § 3)—had the
authority to enact tribal ordinances. On March 19, 1991 the General Council enacted Ordinance
No. 1. See Section B, infra. Then, in 1994, the Band began the process of replacing the Articles
by voting to revise the Articles into the Constitution of the Pala Band of Mission Indians
(“Constitution”). See Letter from Pala’s Election Committee Members to Virgil Townsend,
Superintendent, BIA, Southern California Agency, dated Dec. 19, 1994 [FAC, Ex. 5 at 000049].
The Constitution provides, that it “shall become effective immediately after its approval by a
majority vote of the voters voting in a duly-called elections [sic] at which [the] Constitution is
approved by the Bureau of Indian Affairs.” Const. art. IX, § 1 (emphasis added) [FAC, Ex. 7 at
000063].
On December 19, 1994, the Band submitted the Constitution to the Bureau’s Southern
California Agency for review and approval. (Letter, Ex. 5 at 000187). The Southern California
Agency returned the Constitution to the Band with comments and recommendations. Mem. from
Gilbert A. Stuart, Acting Superintendent, Southern California Agency, to Pala Band, date June
16, 1995, (FAC, Ex. 6 at 000051). On November 12, 1997, a majority of members voting in a
duly-called meeting of the General Council of the Band voted to accept the new Constitution “to
supersede the Articles of Association….” Tribal Resolution No. 97-36, [FAC, Ex. 8 at 000065]
(indicating that the Constitution was approved by a vote of 27 “For” and 0 “Against,” at a duly
called meeting at which a quorum was present). On December 8, 1997, the Southern California
Agency once again received from the Band a copy of the Constitution, along with Tribal
Resolution No. 97-36. The Constitution and Resolution were forwarded to the Bureau’s Pacific
Regional Office (then referred to as the Sacramento Area Office) for review and approval. Mem.
from Acting Superintendent, Southern California Agency, to Area Director, Sacramento Area
Office, dated Dec. 23, 1997 [FAC, Ex. 9 at 000067].
On July 7, 2000, the Pacific Regional Office issued a Certificate of Approval,
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memorializing its approval of the Constitution, retroactive to the date of adoption of the
Constitution by the Band, and the Approval was transmitted to the Band three months later.
Certificate of Approval, signed by Carmen Facio, Acting Regional Director, BIA, dated July 26,
2000 [Id. at 000068]; Letter from Virgil Townsend, Superintendent, Bureau of Indian Affairs, to
Robert Smith, Chairman, Pala Band of Mission Indians, dated Oct. 4, 2000 [Id. at 000069]. The
Bureau’s approval of the Constitution was not appealed.
B. Pala Band of Mission Indians’ Laws Governing Enrollment.
Pursuant to its authority under the then-governing Articles, on March 19, 1961, the
General Council adopted Ordinance No. 1 governing enrollment in the Band. As originally
enacted, Ordinance No. 1 delegated to the United States limited authority vis-à-vis tribal
membership determinations. Only after review and approval or rejection of an application for
enrollment in the Band by the Band’s duly-elected governing body, the Executive Committee,
could the Bureau exercise authority to approve or deny enrollment applications. Ordinance No.
1, §§ 3-4 [FAC, Ex. 4 at 000045]. Ordinance No. 1 also provided that the Executive
Committee—and not the BIA—is responsible for maintenance of the Band’s membership roll.2
Id. § 6(A) [FAC, Ex. 4 at 000046].
The authority previously delegated by the Band to the United States vis-à-vis the
approval and/or denial of enrollment applications was changed after adoption of the Band’s
Constitution. With adoption of the Constitution, the Band expressly delegated the authority to
amend and/or adopt tribal law governing enrollment to the Executive Committee. Constitution,
Art. III [FAC, Ex. 7 at 000055] (“The Executive Committee may from time to time amend
and/or replace its existing Enrollment Ordinance with an Ordinance governing adoption, loss of
membership, disenrollment, and future membership…”). Pursuant to that authority, the
Executive Committee duly-adopted a revised version of Ordinance No. 1 on July 22, 2009
2 The original version of Ordinance No. 1 also delegated to the United States the authority to approve additions, deletion or corrections to the membership roll. Such authority was rescinded with the adoption of amendments to Ordinance No. 1. See Revised Ordinance No. 1 [FAC, Ex. 10 at 000071].
Case 3:12-cv-00551-WQH-KSC Document 41-1 Filed 07/09/12 Page 12 of 34
significantly the process for enrollment in the Band and adjudication of enrollment-related
appeals, and retracted from the Bureau the authority to make enrollment determinations for the
Band. The Executive Committee now has the authority to make final decisions regarding
individuals’ membership in the Band (see generally, Revised Ordinance No. 1, § 5) [FAC, Ex. 12
at 000178], including the authority to reevaluate previously approved applications for
enrollment. Id. § 6.
Today, the Bureau’s role with respect to enrollment in, and disenrollment from, the Band
is limited to what amounts to be an advisory opinion with no binding authority:
A person whose application has been rejected shall have 30 days from the date of the mailing of the notice to him to file with the [Bureau’s] Pacific Regional Director an appeal from the rejection of his application for enrollment along with a written statement specifying why he/she believes that the decision was incorrect. The Pacific Regional Director shall review the decision of the Executive Committee and the written appeals statement submitted by the applicant and make a recommendation to the Executive Committee as to whether it should uphold or change its decision and stating the reasons for the recommendation…Within thirty days of receipt of the recommendation of the Director, the Executive Committee shall meet and consider that recommendation and make a final decision on the appeal of decision. The decision of the Executive Committee shall be final.
Revised Ordinance No. 1, §§ 8(A) (emphasis added). Note that the ordinance also does
not contain a timeline for this recommendation to occur.
C. Procedural History
The genesis of this dispute was a duly-called Special Meeting held on February 1, 2012,
by the Band’s Executive Committee with a quorum present. At this meeting, the Executive
Committee reviewed enrollment information and decided to disenroll the Plaintiffs. On February
3, 2012, they sent a letter to the Plaintiffs informing them of the decision, and advising them they
had 30 days to appeal to the Pacific Regional Director, as per the Ordinance above. On February
21, 2012, Plaintiffs sent a notice of appeal to the Pacific Regional Director. Plaintiffs filed this
3 Plaintiff Annalee H. Yanez was among those Executive Committee members who voted to adopt Revised Ordinance No. 1.
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complaint on March 5, 2012. They also filed a motion for temporary restraining order. [Motion
for TRO (ECF No. 2)]. The Court dismissed this motion. [Order Denying TRO (ECF No. 23)].
Plaintiffs then filed a second TRO and sought relief from the Ninth Circuit. [Motion for TRO
(ECF No. 26)]. Both the relief sought from the Ninth Circuit and TRO were denied. [Order on
Motion for TRO (ECF No. 32)].
Plaintiffs then amended their complaint, alleging now that the BIA is “interpreting a void
[membership] ordinance, and that action violates Plaintiffs’ rights under the Due Process Clause
of the Fifth Amendment.” FAC ¶ 49. Plaintiffs also allege that the “Pacific Regional Agency’s
interpretation of the [Band’s] Constitution” violates the APA “since a General Council Special
‘meeting’ is not an ‘election’” under tribal law. FAC ¶¶ 50; 504 (p. 9 line 11; 21). These claims
are not properly before the Court, and should be dismissed.
III. STANDARDS OF REVIEW
Federal Rule of Civil Procedure 12(b)(1) provides for dismissal of an action for “lack of
subject-matter jurisdiction.” “A federal court is presumed to lack jurisdiction in a particular case
unless the contrary affirmatively appears.” Stock West, Inc. v. Confederated Tribes of the
Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989). A plaintiff bears the burden to
establish that subject matter jurisdiction is proper. See Kokkonen v. Guardian Life Ins. Co. of
Am., 511 U.S. 375, 377 (1994); see Tosco Corp. v. Cmtys. for Better Env’t, 236 F.3d 495, 499
(9th Cir. 2001) (“plaintiff has burden of proving jurisdiction” to survive a Fed. R. Civ. P.
12(b)(1) motion to dismiss). When addressing an attack on the existence of subject matter
jurisdiction, a court “is not restricted to the face of the pleadings.” McCarthy v. U.S., 850 F.2d
558, 560 (9th Cir.1988). In such a case, a court may rely on evidence extrinsic to the pleadings
and resolve factual disputes relating to jurisdiction. St. Clair v. City of Chico, 880 F.2d 199, 201
(9th Cir.), cert. denied, 493 U.S. 993 (1989).
A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) is a challenge to the sufficiency of
the pleadings set forth in the complaint. A Rule 12(b)(6) dismissal is proper where there is either
4 There are two paragraphs numbered 50-52. On line 21, page 9, after paragraph 52 the numbering begins again with paragraph 50.
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a “lack of a cognizable legal theory” or “the absence of sufficient facts alleged under a
(citation omitted). Although the court must accept plaintiff’s allegations of fact as true, it is not
required to accept as correct the legal conclusions the plaintiffs would draw from such facts.
“Legal conclusions . . .,” “threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements,” and “‘naked assertion[s]’ devoid of further factual enhancement.’”
do not suffice to state a cause of action and must be disregarded. Ashcroft v. Iqbal, 129 S. Ct.
1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 557 (2007)). Claims
should be dismissed under Rule 12(b)(6) where “it appears beyond doubt that the plaintiff can
provide no set of facts in support of his legal claim which would entitle him to relief.” Conley v.
Gibson, 355 U.S. 41, 45-46 (1957).
Federal Rule of Civil Procedure 12(b)(7) provides for dismissal for failure to join a party
under Rule 19. In deciding a motion to dismiss for failure to join a party required by Rule 19,
the court may consider material outside the pleadings. McShan v. Sherrill, 283 F.2d 462, 464
(9th Cir. 1960).
IV. ARGUMENT
A. There Has Been No Waiver of the United States’ Sovereign Immunity Under the APA and This Court Lacks Subject Matter Jurisdiction To Hear Plaintiffs’ Claims.
Plaintiffs have not demonstrated a sufficient waiver of sovereign immunity or grant of
subject matter jurisdiction in this case. Federal court jurisdiction is limited, present only where
authorized by statute or the Constitution. See Kokkonen v. Guardian Life Ins. Co. of Am., 511
U.S. 375, 377 (1994); United States v. Van Cauwenberghe, 934 F.2d 1048, 1059 (9th Cir. 1991).
And “The United States, as sovereign, is immune from suit save as it consents to be sued, and the
terms of its consent to be sued in any court define that court’s jurisdiction to entertain the suit.”
United States v. Mitchell, 445 U.S. 535, 538 (1980) (internal marks and citation omitted). Thus
absent a valid waiver of sovereign immunity, no court has subject matter jurisdiction to hear a
suit against the United States. Here, the only potential waiver of sovereign immunity alleged by
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Plaintiffs is from the Administrative Procedure Act of 1946, 5 U.S.C. § 500 et seq. (“APA”).5
Section 702 of the APA contains a limited waiver of sovereign immunity. See 5 U.S.C. §
702; Gallo Cattle Co. v. U.S. Dep’t of Agric., 159 F.3d 1194, 1198–99 (9th Cir. 1998). Section
702 provides that “[a] person suffering legal wrong because of agency action, or adversely
affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to
judicial review thereof.” 5 U.S.C. § 702. Section 706(2) provides that a “reviewing court shall .
. . hold unlawful and set aside agency action, findings, and conclusions found to be (A) arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2).
The APA defines the term “agency action” to include “the whole or a part of an agency rule,
order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” 5 U.S.C. §
551(13).
But Section 704, which is captioned “actions reviewable,” imposes limitations on which
agency actions are subject to judicial review. Section 704 specifies that agency action is not
final for purposes of Section 704 if the agency “requires by rule[,] and provides that the action
meanwhile is inoperative, for an appeal to superior agency authority.” 5 U.S.C. § 704. In other
words, agency action is not final for purposes of Section 704 until “an aggrieved party has
exhausted all administrative remedies expressly prescribed by statute or agency rule.” Darby v.
Cisneros, 509 U.S. 137, 146 (1993). Accordingly, the BIA “action” challenged by Plaintiffs is
reviewable under the APA only if it constitutes exhausted, final agency action for which there is
no other adequate remedy in court. 5 U.S.C. § 704.
5 Neither 28 U.S.C. § 1367, 28 U.S.C. § 1331, nor the due process clause provide an independent waiver of sovereign immunity. Dunn & Black, P.S. v. United States, 492 F.3d 1084, 1088 n.3 (9th Cir. 2007)Fac; see, e.g., Grondal v. United States, 682 F. Supp. 2d 1203, 1218 (E.D. Wash. 2010) (“[N]either the federal question statute, the Declaratory Judgment Act, or the Constitution contain waivers of sovereign immunity.”). Rather any waiver necessarily comes from the APA. See The Presbyterian Church v. United States, 870 F.2d 518, 523–25 & 525 n.9 (9th Cir. 1989) (Section 702 of the APA waives the government’s sovereign immunity in all actions seeking equitable relief from official misconduct, including actions to reverse agency practices alleged to violate the Constitution.); Robbins v. U.S. Bureau of Land Mgmt., 438 F.3d 1074, 1085 (10th Cir. 2006) (holding APA waives sovereign immunity for due process claim).
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1. BIA’s approval of the Band’s Constitution has not been administratively appealed and thus is not reviewable under the APA.
Plaintiffs’ claims regarding BIA’s interpretation of the Band’s Constitution and whether
it was properly approved under tribal law, FAC ¶ 50,6 (p. 9 line 11), have not been exhausted and
therefore subject matter jurisdiction under the APA is lacking, and review is barred.
BIA regulations provide that “[n]o decision, which at the time of its rendition is subject to
appeal to a superior authority in the Department, shall be considered final so as to constitute
Departmental action subject to judicial review under 5 U.S.C. § 704.” 25 C.F.R. § 2.6(a);
Timbisha Shoshone Tribe v. Salazar, 697 F. Supp. 2d 1181, 1188 (E.D. Cal. 2010) (“Before
Plaintiffs can challenge BIA decisions in federal court, ‘BIA regulations require the exhaustion
of administrative remedies.’”) (quoting White Mountain Apache Tribe v. Hodel, 840 F.2d 675,
677 (9th Cir. 1988)).
Part 2 of Title 25 of the code of Federal Regulations contains the administrative appeal
procedures regarding decision of BIA officials. See 25 C.F.R. § 2.3. As part of these
procedures, the regulations establish a hierarchy of who will decide which appeals under what
circumstances. If the decision of a BIA official under the authority of a Regional Director
(formerly known as an “Area Director”) adversely affects a person, that person may appeal the
decision to the Regional Director. 25 C.F.R. § 2.4(a). If a Regional Director’s decision
adversely affects a person, that person may appeal to the Interior Board of Indian
Appeals (“IBIA”). 25 C.F.R. §2.4(e). Pursuant to 25 C.F.R. § 2.6(a) and 43 C.F.R. § 4.314, a
BIA decision that is subject to appeal to a higher authority in the Department is not final and
effective agency action unless a determination is made that exigent circumstances require the
decision to be made effective immediately. See also 25 C.F.R. § 2.6(b), and 43 C.F.R. §
4.314(a) (“No decision of . . . a BIA official . . . will be considered final [and] subject to judicial
review . . ., unless it has been made effective pending a decision on appeal by order of the
[IBIA]”). Thus, within the BIA, the appellate process consists of the following steps: (1) an
6 There are two paragraphs numbered 50-52. On line 21, page 9, the numbering begins again with paragraph 50.
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initial decision or action, (2) an appeal to the Regional Director, 25 C.F.R. § 2.19, and (3) filing
an appeal with the IBIA. 43 C.F.R. § 4.331.
Here, the Plaintiffs have not yet administratively exhausted their claims under this
process. Indeed, they only recently began the administrative appeal process. On July 2, 2012,
Plaintiffs appealed a series of alleged inactions and decisions taken by BIA officials—including
their interpretation of the membership ordinance and Constitution at issue in this suit. (A true
and correct copy of Plaintiffs’ appeals is attached hereto as Exhibit A.) Therefore, as the appeal
process has just begun, it is clear that Plaintiffs’ claims are not yet administratively exhausted.
Because Plaintiffs’ claims are not administratively exhausted, the APA prevents this
Court from reviewing these claims. See Reiter v. Cooper, 507 U.S. 258, 269 (1993) (under
doctrine of exhaustion, a suit filed before exhausting available administrative remedies is
premature and should be dismissed); Stock W. Corp. v. Lujan, 982 F.2d 1389, 1393-94 (9th Cir.
1993) (“On three occasions, we have upheld the dismissal of lawsuits challenging BIA decisions
under the [APA] on the ground that the plaintiff failed to take the required administrative appeal.
In doing so, we have noted the jurisdictional nature of the administrative appeal requirement.”)
(citations omitted); Davis v. United States, 199 F. Supp. 2d 1164, 1179 (W.D. Okla 2002)
(“[E]xhaustion of the appeal procedures is a jurisdictional prerequisite to judicial review.”).
Exhaustion “serves the twin purposes of protecting administrative agency authority and
promoting judicial efficiency.” McCarthy v. Madigan, 503 U.S. 140, 145 (1992). “By giving
the agency a chance to correct its own errors, administrative review often obviates the need for
litigation.” Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1237 (10th Cir. 2005). The
exhaustion requirement also allows the agency to give a definitive answer and reasoned
explanation for its decision and to develop an administrative record for its final decision.
Simmat, 413 F.3d at 1238. The important interests served by the exhaustion requirement would
be undermined, and the BIA would be harmed were this Court to grant the relief Plaintiffs seek.
Regardless, because Plaintiffs have not exhausted their remedies, no jurisdiction exists under the
APA for this action and it must be dismissed.
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2. BIA’s approval of the Constitution took place outside the APA’s statute of limitations period, and therefore is not reviewable under the APA.
Furthermore, the Court must also dismiss Plaintiffs’ second cause of action because review,
under the APA, of the BIA’s approval of the Band’s Constitution under is barred by the APA’s
six year statute of limitations. Plaintiffs filed their initial complaint on March 5, 2012. In their
most recent complaint, Plaintiffs allege that the BIA approved the “Revised Constitution in or
about July 2000 . . . .” FAC ¶ 50 (p. 9 lines 18-19). Therefore, from the fact of Plaintiffs’ FAC,
it is clear that the BIA’s approval of the Constitution occurred well outside the statute of
limitations period and APA review is thus barred. Equitable estoppel principles—even if they
survive the Supreme Court’s recent case on the matter—do not apply to this situation. Therefore
Plaintiffs’ second cause of action is barred by the statute of limitations and this Court must
dismiss it.
a) Plaintiffs’ claims have already accrued.
A statute of limitations “constitutes a condition on the waiver of sovereign immunity.”
Block v. North Dakota, 461 U.S. 273, 287 (1983)); see also Marley v. United States, 567 F.3d
1030, 1034 (9th Cir. 2009). If a claim is not filed against the United States within the applicable
limitations period, the claim “is barred, unless [the plaintiff] can find a recognized reason to
avoid this result.” Nesovic v. United States, 71 F.3d 776, 778 (9th Cir. 1995) (citing Irwin v.
Dep’t of Veterans Affairs, 498 U.S. 89 (1990)).
The statutory limitations period in 28 U.S.C. § 2401(a) applies to claims brought under the
APA. Hells Canyon Pres. Council v. U.S. Forest Serv., 593 F.3d 923, 930 (9th Cir. 2010). The
statute unequivocally states that “every civil action commenced against the United States shall be
barred unless the complaint is filed within six years after the right of action first accrues.” 28
U.S.C. § 2401(a).
The focus of a statute of limitations inquiry must begin with accrual. “A cause of action
accrues when a plaintiff knew or should have known of the wrong and was able to commence an
action based upon that wrong.” Wild Fish Conservancy v. Salazar, 688 F. Supp. 2d 1225, 1233
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(E.D. Wash. 2010) (citing Shiny Rock Mining Corp. v. United States, 906 F.2d 1362, 1364 (9th
Cir. 1990)) (emphasis added). Thus actual notice triggers the statute of limitations. Sisseton-
Wahpeton Sioux Tribe v. United States, 895 F.2d 588, 590, 592-93 (9th Cir. 1990). But a
plaintiff need not even have actual knowledge of the events fixing liability for a claim to accrue.
See, e.g., Shiny Rock Mining Corp., 906 F.2d at 1364 (statute of limitations period began once
the plaintiff had constructive notice, specifically, after the agency published notice in the Federal
Register preventing mining on the land at issue); e.g., Shoshone Indian Tribe of the Wind River
Reservation, Wyo. v. United States, 672 F.3d 1021, 1030 (Fed. Cir. 2012). In Shiny Rock, the
Ninth Circuit held that the statute of limitations period began once the plaintiff had constructive
notice, specifically, after the agency published notice in the Federal Register preventing mining
on the land at issue. A plaintiff is not entitled to sit on his rights and challenge alleged wrongful
actions that took place over six years ago. See Brown v. United States, 195 F.3d 1334, 1338
(Fed. Cir. 1999) (claim concerning leases was barred because at least one of the allottees, though
not a party to the suit, knew of the claim and court saw no reason why his diligence should not
be imputed to the other plaintiffs).
Here, there is no dispute that the Constitution was adopted in 1997, and the BIA approved
it in 2000. [FAC, Ex. 13.] Since its adoption, the Constitution has been amended on three
separate occasions. See Amendment Certifications I through III, [FAC, Ex. 3 at 000033, 034,
and 042].7 The minutes of the General Council reveal that in 2003, for instance, 376 votes were
cast on amendments to the Constitution. (A true and correct copy, as redacted, of the Minutes
from the Band’s July 14, 2004 General Council Meeting is attached hereto as Exhibit B.)
Further, in 2003, the General Council passed a motion providing for Tribal members to be
provided with a copy of the Constitution upon turning 18. (A true and correct copy, as redacted,
of the Minutes from the Band’s June 11, 2003 General Council Meeting is attached as Exhibit
B.) Therefore, far from being kept secret, the Constitution was known to the hundreds of Tribal
7 Plaintiff Annallee Yanez Trujillo certified that the Tribe “is governed by…the Constitution of the Pala Band of Mission Indians,” in certifying the General Council’s passage of each of the amendments. Therefore there can be no doubt that Plaintiff Trujillo had actual knowledge of the Constitution—and would have been able to challenge it were she to have wished to.
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members who voted on amendments to it, or who received a copy upon turning 18. Plaintiffs
either had knowledge or should have had knowledge of the Constitution and therefore could have
asserted their claim well before the expiration of the limitations period. For this reason, their
second cause of action is untimely and barred.
b) Equitable tolling is foreclosed by the Supreme Court.
Plaintiffs assert that no one knew the Constitution was amended other than Plaintiff
Trujillo, who was allegedly subject to a “secrecy agreement,” and this justifies equitable tolling.
However, statutes of limitation are jurisdictional, and Plaintiffs did have constructive knowledge
of the amendments. Further, equitable tolling has been foreclosed by the Supreme Court.
Therefore, Plaintiffs’ claims have accrued and are barred by the statute of limitations.
The Ninth Circuit has held that a “failure to sue [the United States] within the period of
limitations . . . deprives the district court of jurisdiction to entertain the action.” Sisseton-
Wahpeton, 895 F.2d at 592. But other Ninth Circuit opinions have found 28 U.S.C. § 2401(a)
not to be a jurisdictional bar and therefore subject to equitable tolling. See Cedars-Sinai Medical
Center v. Shalala, 125 F.3d 765, 770 (9th Cir.1997) (citing Irwin v. Dep’t of Veterans Affairs,
498 U.S. 89, 95-96 (1990)). More recently, however, the Supreme Court held that 28 U.S.C. §
2501—a statute of limitations governing claims against the United States in the Court of Federal
Claims with language identical to that appearing in 28 U.S.C. § 2401—is jurisdictional and not
subject to equitable tolling. John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 132–39
(2008). Though the Ninth Circuit has yet to address the question in light of John R. Sand &
Gravel, the similarities between the 28 U.S.C. § 2501 and 28 U.S.C. § 2401 leave little room for
doubt that Section 2401 is also jurisdictional. See Marley v. United States, 567 F.3d 1030, 1034,
1036 n.3 (9th Cir. 2009) (holding that the limitations period in 28 U.S.C. § 2401(b) applicable to
tort claims is jurisdictional and noting that “Section 2401(a) is not before us, so we need not
decide here whether Cedars-Sinai can survive after John R. Sand & Gravel”).
Even if equitable tolling were not foreclosed by the Supreme Court, Plaintiffs have not
demonstrated it is warranted here. Equitable tolling is allowed if there are defective pleadings, if
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a claimant was tricked by the opposing party into letting a deadline expire, or when an agency’s
written notice of the statutory period was clearly inadequate. Lehman v. United States, 154 F.3d
1010, 1016 (9th Cir. 1998). None of these conditions are present. Notably, the opposing party
here is the United States—and the United States (as opposed to the Band) has not taken any
action to conceal the cause of action from Plaintiffs. See Japanese War Notes Claimants Ass’n
v. United States, 373 F.2d 356, 359, cert. denied, 389 U.S. 971 (1967) (to invoke exception,
plaintiff must show that “defendant has concealed its acts”) (emphasis added); United States v.
Sams, 521 F.2d 421, 429 (3d Cir. 1975).
And a plaintiff seeking to equitably toll an otherwise time-barred claim “bears the burden
of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that
some extraordinary circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418
(2005). Here, Plaintiffs have not demonstrated any “extraordinary circumstance” that may
override “the important interests served by statutes of limitations, including evidence
preservation, repose, and finality.” Id. And Plaintiffs have not been diligently pursuing their
rights, as they were or should have been aware of the changes to the Band’s governing
documents but did not sue until well after the applicable limitations period. Therefore, the Court
must dismiss Plaintiff’s second cause of action since it is barred by the APA’s statute of
limitations.
3. Other BIA actions related to the membership ordinance are not “final agency actions” and therefore are not reviewable under the APA.
Plaintiffs assert that the BIA’s letters of February 24, 2012 and March 23, 2012 and other
general “action in interpreting a void membership ordinance” constitute final agency actions that
are reviewable under the APA. FAC ¶¶ 25-26; 29; 33. They are not. There are specific
identifiable “actions” for APA review purposes and these do not qualify. Further, BIA’s
issuance of a letter or the general action of interpreting an ordinance is not “final” because it
does not represent the consummation of the BIA’s decisionmaking process. And, most
importantly, BIA’s opinion regarding the disenrollment is merely advisory, as the BIA has no
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authority to change the enrollment status of tribal members—therefore no legal consequences
can flow from these opinions. For these reasons, the letters and other actions cited by Plaintiffs
are outside the purview of the APA and this Court lacks subject matter jurisdiction to review
them.
As the Supreme Court made clear in Norton v. S. Utah Wilderness Alliance (“SUWA”),
542 U.S. 55, 62-63 (2004), judicial review under Section 706 is limited to claims alleging a
failure to take one of the “agency actions” defined in Section 551(13) of the APA. See 5 U.S.C. §
551(13) (defining “agency action”); SUWA, 542 U.S. at 62 (“[s]ections 702, 704, and 706(a) all
insist upon an ‘agency action,’….”). Issuing a letter that references the band’s Constitution
(FAC ¶¶ 25-26) and “interpreting a void ordinance” (FAC ¶ 33) are not agency actions as
defined by the APA. Because the letters are merely advisory recommendations, they are not
statements of future effect designed to implement, interpret, or prescribe law or policy (“rule”).
Nor do they represent BIA’s final disposition in a matter (“order”); and they are certainly not a
“license,” “sanction,” or type of “relief.” See 5 U.S.C. § 551. Therefore, these actions do not
constitute “agency action” under the APA, and are not the type of action that the Court can
review under Section 706.
Even if they did constitute “actions” as defined by the APA, they would not be “final” for
purposes of the APA, and therefore would still be outside this Court’s jurisdiction. Identification
of a “final” agency action is a prerequisite for stating a claim under the APA when no other
statute provides for judicial review, and no other statute provides for review here. 5 U.S.C. §
704; Ukiah Valley Med. Ctr. v. FTC, 911 F.2d 261, 264 n.1 (9th Cir. 1990) (“finality is ... a
jurisdictional requirement”). An agency action will be considered final when two conditions are
met: If the decision both (1) represents the consummation of the agency’s decision making
process; and (2) determines rights or obligations or creates legal consequences. See Bennett v.
Spear, 520 U.S. 154, 177-78 (1997); Oregon Natural Desert Ass’n v. U.S. Forest Serv., 465 F.3d
977, 982 (9th Cir. 2006). Where either condition is not met, there is no final agency action that
is subject to judicial review. Id.
Here, the identified actions did not represent a culmination of BIA’s decision making
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process or determine rights or obligations or create legal consequences. The 2011 letters were
not a culmination, but rather simply referenced the earlier BIA decision regarding the Band’s
Constitution. And because BIA cannot alter the Band’s enrollment decisions, nothing BIA did
vis-à-vis this enrollment decision did or indeed even could change as a result of their
interpretation. A mere recommendation by the BIA has no effect on whether the person will be
an enrolled member or not. It is advisory: the Band does not have any legal requirement to
follow the recommendation. Rather, it is the Band’s enrollment committee’s decision that is the
final word. Therefore nothing did or could change solely as a result of BIA’s recommendation,
no legal consequences flowed from it, and it is not final. See, e.g., Indep. Equip. Dealers Ass’n
v. EPA, 372 F.3d 420, 428 (D.C. Cir. 2004) (no reviewable final action because agency “tread no
new ground” and “left the world just as it found it”). Accordingly, the United States has not
waived sovereign immunity under the APA for Plaintiffs’ claims, and the Court is without
jurisdiction to consider them.
B. Plaintiffs Fail to Establish Subject Matter Jurisdiction or State a Claim Based Upon BIA’s Alleged Violation of a Fiduciary Duty.
Plaintiffs assert that “BIA has a fiduciary duty and . . . that the federal government has a
duty to protect individual tribal members even from their own tribal government.” FAC. ¶¶ 13;
40. As an initial matter, this Court rejected this argument as applied to the facts here. “[T]his
Court cannot find that the Bureau of Indian Affairs is legally required to act to protect the
membership rights of individual tribe members from the exercise of powers as provided in the
tribal government documents.” Order at 13 (ECF No. 23). Regardless, Plaintiffs have failed to
establish a fiduciary duty here.
The Supreme Court recently reiterated that, though the relationship between the
Government and Indians has been described as a trust, “Congress may style its relations with the
Indians a ‘trust’ without assuming all the fiduciary duties of a private trustee, creating a trust
relationship that is ‘limited’ or ‘bare’ compared to a trust relationship between private parties at
common law.” United States v. Jicarilla Apache Nation, 131 S. Ct. 2313, 2323 (2011) (citing
United States v. Mitchell, 445 U.S. 535, 542 (1980) (“Mitchell I “) and United States v. Mitchell,
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463 U.S. 206, 224 (1983) (“Mitchell II”). In order to create liability based on the type of
fiduciary relationship alleged by Plaintiffs, Courts require demonstration of specific statutes and
regulations that “establish [the] fiduciary relationship and define the contours of the United
States’ fiduciary responsibilities.” Jicarilla, 131 S. Ct. at 2325 (quoting Mitchell II, 463 U.S. at
224).
Accordingly, without “identify[ing] a specific, applicable, trust-creating statute or
regulation that the Government violated, . . . neither the Government’s ‘control’ over [Indian
assets] nor common-law trust principles matter.;” Id. at 2325 (quoting United States v. Navajo
Nation, 556 U.S. 287, 302 (2009) (“Navajo II “)). See also Marceau v. Blackfeet Hous. Auth.,
540 F.3d 916, 924 (9th Cir. 2008) (“[A] trust relationship alone is not enough to imply a remedy
in damages; ‘a further source of law [is] needed to provide focus for the trust relationship.’”)
(citation omitted). No such specific statute or regulation has been shown, and therefore there is
no fiduciary relationship that could provide jurisdiction for Plaintiffs’ claims.
C. Plaintiffs Fail to Show Subject Matter Jurisdiction or State a Claim Based Upon the Due Process Clause.
Plaintiffs allege the “Pacific Regional Agency’s action in reviewing the Plaintiffs’
membership under a void revised ordinance is an injury in fact, and violates the Plaintiffs’
procedural due process rights.” FAC ¶¶ 34-35. However, Plaintiffs have failed to show that any
actions by BIA—as opposed to the Band—deprived them of property and, further, that BIA’s
procedures fail to provide adequate process to review any BIA decisions that allegedly caused a
deprivation.
A claim for violation of procedural due process has two components. First, Plaintiffs must
show that a protected property interest was taken. Second, they must show that the procedural
safeguards surrounding the deprivation were inadequate. See Bd. of Regents v. Roth, 408 U.S.
564, 568-69 (1972). Critically, to state a due process claim, “the complainant must allege facts
showing not only that the State has deprived him of a ... property interest but also that the State
has done so without due process of law.” Gearhart v. Thorne, 768 F.2d 1072, 1073 (9th Cir.
1985) (quoting Marrero v. City of Hialeah, 625 F.2d 499, 519 (5th Cir. 1980)) (emphasis added,
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internal quotation marks omitted). Therefore, if a government action does not deprive an
individual of such an interest, the due process guarantee does not require any hearing or process
whatsoever—even if the challenged action adversely affects that individual in other ways. See
e.g., O’Bannon v. Town Court Nursing Ctr., 447 U.S. 773 (1980). Thus, “only after finding the
deprivation of a protected interest” by the state may the Court proceed to considering Plaintiff’s
allegations regarding procedural defects in the application of the federal acknowledgment
regulations to its petition. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999).
Here Plaintiffs have not borne their burden of establishing that the Federal Government has
deprived them of property or liberty. The Band, in disenrolling Plaintiffs, may or may not be
depriving Plaintiffs of property. But the Band is not a subdivision of the United States. Rather,
the Band is a “distinct, independent political communit[y]” that has the power to “define its own
membership for tribal purposes.” Santa Clara Pueblo v. Martinez, 436 U.S. 49, 54 (1978). Under
the current enrollment ordinance BIA cannot affect the Band’s enrollment decisions; all BIA has
done here is “review[] the Plaintiffs’ membership.” FAC ¶ 34. Such review does not deprive the
Plaintiffs of property, nor have Plaintiffs even alleged it has.
Moreover, even assuming Plaintiffs were deprived of a valid property interest by BIA,
Plaintiffs have the opportunity to be heard before the Interior Board of Indian Appeals. The
fundamental principle of due process is “the opportunity to be heard ‘at a meaningful time and in
a meaningful manner.’” Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (citation omitted). Due
process requires the Government to precede any deprivation of a protected interest—which,
again, is absent here—with “notice and opportunity for hearing appropriate to the nature of the
case.” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950). Here, as
described in section IV(A)(1), supra, Plaintiffs have the opportunity to challenge the BIA’s
decisions. See, e.g., Chuchua v. Pac. Reg’l Dir., Bureau of Indian Affairs, 42 IBIA 1, *4, 2005
WL 3506563 (2005) (“[A]n appellant’s due process rights are protected by the right to appeal a
BIA decision ….”); Mobil Oil Corp. v. Albuquerque Area Director, Bureau of Indian Affairs, 18
IBIA 315, 332–33, 1990 WL 321061 (1990) (holding that the appellant’s due process rights were
adequately protected given the administrative review process of 25 C.F.R. Part 2). In short, by
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providing administrative appeal procedures and thus the opportunity to be heard, the BIA
complied with the requirements of procedural due process.
“The mere allegation of a due process violation ‘is not sufficient to raise a “colorable”
constitutional claim to provide subject matter jurisdiction,’” as “the plaintiff must allege ‘facts
sufficient to state a violation of substantive or procedural due process.’ “ Anderson v. Babbitt,
1992)). Plaintiffs here have not provided sufficient facts to state a claim for violation of due
process by the BIA nor to demonstrate subject matter jurisdiction based on such a claim.
Therefore this Court lacks jurisdiction to hear Plaintiffs’ first cause of action.
D. Absent a Valid, Exhausted APA Claim, the Band is an Indispensable Party that Cannot be Joined Without its Consent.
Consideration of Federal Rule of Civil Procedure 19 also shows that dismissal is
appropriate. Plaintiffs seek to challenge the BIA’s approval of the Band’s Constitution and
interpretation of their enrollment ordinance. Consequently, the Band, whose Constitution and
potentially membership determinations could be altered is indispensable parties to this lawsuit.
Absent a showing that the Band has waived its sovereign immunity from this suit and therefore
can be joined as a party defendant, this action must be dismissed with prejudice.
Rule 19(a)(1)(B) provides that a person “must” be joined if they have an interest relating
to the subject of the action and are so situated that disposing of the action in the person’s absence
may either “as a practical matter impair or impede the person’s ability to protect the interest” or
“leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise
inconsistent obligations because of the interest.” Fed. R. Civ. P. 19(a)(1)(B)(i)-(ii). If such a
person “cannot be joined, the court must determine whether, in equity and good conscience, the
action should proceed among the parties before it, or should be dismissed.” Fed. R. Civ. P. 19(b).
In order to be a necessary party under Rule 19, the Band must have an “interest” in the
subject of the action. Courts have construed the “interest” requirement fairly broadly to cover
any “significantly protectable” or “legally protectable” interest in the subject of the litigation.
See Makah Indian Tribe v. Verity, 910 F.2d 555, 558 (9th Cir. 1990). Nonparty tribes can claim
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a sufficient interest under Rule 19(B) in a wide range of circumstances, including situations
where the outcome may interfere in their internal governance or affect their status as sovereign
entities.8
Of paramount importance in this step of the analysis is the Band’s interest in preserving
its right to self government and right to determine its membership. Few rights are so well-
recognized as the right of a tribe to self-govern as an independent political community and to
control their governing membership. “A tribe’s right to define its own membership for tribal
purposes has long been recognized as central to its existence as an independent political
community.” Santa Clara Pueblo, 436 U.S. at 72 n.32.
Resolution of the issues presented in the FAC necessarily involves consideration of the
Band’s Constitution, as well as its membership rolls and its right to determine its membership,
whether by its own ordinances or by requesting the assistance of the BIA in making its
membership decisions. Consequently, the Band has a clear interest in this litigation.
The next part of the inquiry considers the absent tribe’s ability to protect its interest. The
Plaintiffs do not purport to act in any official capacity as officers of the Band and no officer of
the Band has appeared in this action to protect its interests. Given the centrality of the Band’s
Constitution and the membership ordinance in this case, the Band’s interests in self government,
and determining its membership and the entitlements of membership—which lies at the very
core of its self-determination—will as a practical matter be impaired or impeded by its absence.
Next, the rules contemplate whether failing to join a party would leave an existing party
subject to risk of inconsistent obligations. FRCP 19(a)(1)(B)(ii). Here, Plaintiffs seek a
declaration that the BIA acted arbitrarily in recognizing the Band’s Constitution. Were the Court
to grant this relief, there is a substantial risk that if the BIA then found the Constitution to be
invalid, the Band would sue, seeking to overturn this decision and potentially subjecting the BIA
8 See, e.g., Shermoen v. United States, 982 F.2d 1312 (9th Cir. 1992) (nonparty Hoopa Valley and Yurok Tribes found to have an interest in suit by individual tribal members and another Tribe challenging the constitutionality of the Hoopa-Yurok Settlement Act of 1988); Confederated Tribes of Chehalis v. Lujan, 928 F.2d 1496) (9th Cir. 1991) (absent Quinault Nation had a sufficient interest in suit challenging refusal by United States to recognize tribes other than the Quinault Nation on the Quinault Indian Reservation).
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to inconsistent obligations under FRCP 19(a)(1)(B)(ii).
If a nonparty tribe meets the criteria in Rule 19(a)(1)(B), the next step is to analyze
whether it may be joined as a party. Pit River Agirc. Coop. Ass’n v. United States, 30 F.3d
1088, 1099 (9th Cir. 1994). Where the “necessary” party is a tribe, the threshold inquiry is
whether the tribe enjoys sovereign immunity from suit. Absent an unequivocal waiver of
immunity, tribes are not subject to state or federal court jurisdiction.9 Santa Clara Pueblo, 436
U.S. at 58; California Dep’t of Fish and Game v. Quechan Tribe of Indians, 595 F.2d 1153, 1155
(9th Cir. 1979) (“Sovereign immunity involves a right which courts have no choice, in the
absence of a waiver, but to recognize.”).
The Plaintiffs have not alleged that the Band has waived its sovereign immunity from
suit. Therefore, if this Court were to find that the Band is an indispensable party because it has
an interest in the litigation (its right to control its membership and governing documents) and
because its ability to protect that interest will be impaired by its absence from the litigation,
dismissal is appropriate. See Lomayaktewa v. Hathaway, 520 F.2d 1324 (9th Cir. 1975) (where
plaintiffs did not contend tribe waived sovereign immunity, dismissal follows if court determines
tribe is indispensable party).
Where joinder is impossible because a tribe enjoys sovereign immunity from suit, the
Rule 19(b) analysis next considers “whether, in equity and good conscience, the action should
proceed among the existing parties [before the Court] or should be dismissed.” Fed. R. Civ.
P. 19(b). The factors that the court must consider include: (1) the extent to which a judgment
might prejudice either the absentee or the parties; (2) the extent to which such prejudice might be
lessened or avoided, for example, by the careful shaping of relief; (3) whether a judgment
entered in the person’s absence would be adequate; and (4) whether the plaintiff would have
9 All federally recognized tribes enjoy sovereign immunity from suit. Pit River, 30 F.3d at 1100. The BIA has authority to publish official lists of recognized tribes in the Federal Register. 25 C.F.R. §§ 83.2, 83.5. In 2010, the BIA published its list of “Indian Entities Recognized and Eligible To Receive Services From the United States Bureau of Indian Affairs” 75 Fed. Reg. 60,810-01 (Oct. 1, 2010). The Band, listed under its full, formal name, “Pala Band of Luiseno Mission Indians of the Pala Reservation, California,” is included in the current list of federally recognized tribes. Id. Therefore, the Band enjoys sovereign immunity from suit. Pit River, 30 F.3d at 1100.
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another adequate remedy if the action were dismissed.10 See Fed. R. Civ. P. 19(b). In cases
where a nonparty tribe meets the Rule 19(a) criteria, the courts generally have concluded that the
equities weigh in favor of dismissal under Rule 19(b) rather than proceeding in the tribe’s
absence.11
The first factor, prejudice to the absent party, “largely duplicates the consideration that
made a party necessary under Rule 19(a).” Am. Greyhound Racing, Inc. v. Hull, 305 F.3d 1015,
1024-25 (9th Cir. 2002). As discussed above, the Band will suffer prejudice if Plaintiffs are
successful in obtaining a delclaratory judgment that the BIA acted arbitrarily in approving their
constitution or enrollment ordinance. Such a judgment could have significant effects on the
authority and sovereignty of the Band, and such prejudice weighs overwhelmingly in favor of a
dismissal. See Confederated Tribes of Chehalis, 928 F.2d at 1498-99.
Consideration of the second and third factors (shaping of relief or adequate
remedy/judgment) yields a similarly negative result for the Plaintiffs. The ability of the Band to
determine its membership is clearly of the utmost importance to the sovereignty of the band as
evidenced by their enrollment ordinance, which provides that state and federal courts “shall not
have jurisdiction over issues relating to enrollment in the Pala Band.” FAC Ex. 10, Section 7 C,
at 000075. This is a clear expression of tribal self-determination which must be respected, and
no relief could be shaped to avoid interference with this self-determination. Under these
circumstances, the second and third factors weigh in favor of dismissal.
Finally, this Court should consider whether Plaintiffs will not have an adequate remedy if
the action is dismissed for non-joinder. Because the Band enjoys sovereign immunity, the
Plaintiffs have no alternative forum where they can seek declaratory relief against the BIA under
the circumstances alleged in the Complaint. The lack of an alternative forum, however, does not
10 “Some courts have noted, however, that when the necessary party is immune from suit, there is very little need for balancing Rule 19(b) factors because immunity itself may be viewed as the compelling factor.” Confederated Tribes of Chehalis, 928 F.2d at 1499. 11 See, e.g., Clinton v. Babbitt, 180 F.3d 1081, 1091 (9th Cir. 1999); United States ex rel. Hall v. Tribal Dev. Corp., 100 F.3d 476 (7th Cir. 1996); Pit River, 30 F.3d at 1088; Shermoen, 982 F.2d at 1312; Confederated Tribes of Chehalis, 928 F.2d at 1498.
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prevent this Court from finding that the Band is an indispensable party and dismissing this case.
The Ninth Circuit has routinely held that the tribal interest in maintaining its sovereign immunity
outweighs a plaintiff’s interest in litigating its claim. Am. Greyhound, 305 F.3d at 1025;
Dawavendewa v. Salt River Project, 276 F.3d 1150 (9th Cir. 2002); Pit River, 30 F.3d at 1088.
Given the arguments set forth above, this Court should conclude, as the court in Pit River did,
that “[a]lthough the [plaintiff] does not have an alternative forum in which it may seek . . .
declaratory relief against the government, we dismiss the [plaintiff’s] claims with prejudice,
since the [tribe] is an indispensable party under Rule 19(b).” Pit River, 30 F.3d at 1103.
E. Discovery is Inappropriate.
Plaintiffs have requested discovery. FAC at 10. However, Plaintiffs have entirely failed to
demonstrate that discovery, rather than record review, would be appropriate in this APA-based
suit.
Claims under the APA must challenge a final agency action, if they are to be cognizable.
Norton v. S. Utah Wilderness Alliance, 542 U.S. 55 (2004); Lujan v. Nat’l Wildlife Fed’n, 497
U.S. 871, 882 (1990). Because a review of a final agency action is limited to an administrative
record produced by the relevant agency, and not a new record created through the discovery
process, discovery is generally not permitted. Both the Supreme Court and the Ninth Circuit
have emphasized that “the focal point for judicial review should be the administrative record
already in existence, not some new record made initially in the reviewing court.” Camp v. Pitts,
411 U.S. 138, 142 (1973); see also Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 743 (1985);
Sw. Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1450 (9th Cir. 1996).
The Ninth Circuit allows a reviewing court to consider extra-record materials in APA cases
under four narrow exceptions to the record review rule: “(1) if necessary to determine whether
the agency has considered all relevant factors and has explained its decision, (2) when the agency
has relied on documents not in the record[], (3) when supplementing the record is necessary to
explain technical terms or complex subject matter, [or] (4) when plaintiffs make a showing of
agency bad faith.” Ctr. for Biological Diversity v. U.S. Fish & Wildlife Serv., 450 F.3d 930, 943
(9th Cir. 2006); Animal Def. Council v. Hodel, 840 F.2d 1432, 1436-37 (9th Cir. 1988).
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Plaintiffs have not demonstrated that any of these circumstances are present, and therefore
discovery is not appropriate.
Even were discovery appropriate in this case, this Court should not grant any discovery
until it has ruled on Defendants’ Motion to Dismiss, which argues the Court has no jurisdiction
to hear the case. See, e.g., Jarvis v. Regan, 833 F.2d 149, 155 (9th Cir. 1987); U.S. Catholic
Conference v. Abortion Rights Mobilization, Inc., 487 U.S. 72, 79-80 (1988) (“It is a recognized
and appropriate procedure for a court to limit discovery proceedings at the outset to a
determination of jurisdictional matters.”). Immediate discovery in this case would unnecessarily
burden parties and non-parties alike. Most obviously, “[s]hould Defendant[s] prevail on [their]
motion to dismiss, any effort expended in responding to merits-related discovery would prove to
be a waste of both parties’ time and resources.” Orchid Biosciences, Inc., v. St. Louis Univ., 198
F.R.D. 670, 675 (S.D. Cal. 2001).
V. CONCLUSION
For the foregoing reasons, the Court should not order discovery, and should dismiss
Plaintiffs’ First Amended Complaint with prejudice.
Respectfully submitted, July 9, 2012,
IGNACIA S. MORENO Assistant Attorney General s/ Reuben S. Schifman REUBEN S. SCHIFMAN Trial Attorney Natural Resources Section Environment and Natural Resources Division U.S. Department of Justice P.O. Box 7611 Washington, DC 20044 Tel: (202) 305-0468 Fax: (202) 305-0506 [email protected] Of Counsel:
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LAURA E. DUFFY United States Attorney TOM STAHL Assistant U.S. Attorney Chief, Civil Division Southern District of California California State Bar No. 078291 Office of the U.S. Attorney 880 Front Street, Room 6293 San Diego, CA 92101-8893 Tel: (619) 546-7767 [email protected] GEORGE V. MANAHAN Assistant U.S. Attorney Southern District of California California State Bar No. 239130 Office of the U.S. Attorney 880 Front Street, Room 6293 San Diego, CA 92101-8893 Tel: (619) 546-7607 [email protected]
KAREN KOCH Office of the Solicitor United States Department of the Interior Washington, D.C. 20240
Attorneys for the Federal Defendants
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CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing document was served by Electronic Case
Filing, which will send a notice of electronic filing to all counsel of record in the above
captioned action.
Respectfully submitted this July 9, 2012,
IGNACIA S. MORENO Assistant Attorney General s/ Reuben S. Schifman REUBEN S. SCHIFMAN Trial Attorney Natural Resources Section Environment and Natural Resources Division U.S. Department of Justice P.O. Box 7611 Washington, DC 20044 Tel: (202) 305-0468 Fax: (202) 305-0506 [email protected]
Case 3:12-cv-00551-WQH-KSC Document 41-1 Filed 07/09/12 Page 34 of 34
