Cloverdale Rancheria of Pomo Indians of California et al v. Salazar et al, No. 5:2010cv01605 - Document 69 (N.D. Cal. 2011)
Court Description: ORDER GRANTING MOTION TO DISMISS FOR LACK OF SUBJECT-MATTER JURISDICTION; TERMINATING MOTION TO INTERVENE AS MOOT. Signed by Judge Jeremy Fogel on May 17, 2011. (jflc3, COURT STAFF) (Filed on 5/17/2011)
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Cloverdale Rancheria of Pomo Indians of California et al v. Salazar et al Doc. 69 1 **E-Filed 5/17/11** 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 SAN JOSE DIVISION 8 9 10 11 12 13 14 15 Case No. 5:10-cv-1605 JF/PVT CLOVERDALE RANCHERIA OF POMO INDIANS OF CALIFORNIA, a formerly federally recognized Indian Tribe, JAVIER MARTINEZ; SARAH GOODWIN; LENETTE LAIWABROWN; GERAD SANTANA and JOHN TRIPPO, in their official capacities as members of the Cloverdale Rancheria of Pomo Indians of California Tribal Council; and COMMITTEE TO ORGANIZE THE CLOVERDALE RANCHERIA GOVERNMENT, and unincorporated association, Plaintiffs, 16 17 18 ORDER1 GRANTING MOTION TO DISMISS FOR LACK OF SUBJECTMATTER JURISDICTION; TERMINATING MOTION TO INTERVENE AS MOOT v. KENNETH L. SALAZAR, et al., 19 Defendants. 20 21 22 Plaintiffs bring the instant action under the Administrative Procedure Act (APA), 5 23 U.S.C. §§ 551, et seq., and 701, et seq., seeking a writ of mandamus compelling Defendants to 24 recognize what Plaintiffs claim is the duly authorized government of the Cloverdale Rancheria of 25 Pomo Indians. Defendants move to dismiss the action for lack of subject-matter jurisdiction, 26 contending that Plaintiffs have not challenged “final agency action” as that term is used in the 27 28 1 This disposition is not designated for publication in the official reports. Case No. 5:10-cv-1605 JF/PVT ORDER GRANTING MOTION TO DISMISS FOR LACK OF SUBJECT-MATTER JURISDICTION; TERMINATING MOTION TO INTERVENE AS MOOT (JFLC3) Dockets.Justia.com 1 APA. Proposed intervenors, who also claim to represent the Cloverdale Rancheria of Pomo 2 Indians, move to intervene in the action and for sanctions against Plaintiffs. For the reasons 3 discussed below, the Court concludes that it is without jurisdiction to hear the claims currently 4 before it and will grant Defendants’ motion to dismiss the action.2 The motion to intervene and 5 motion for sanctions will be terminated without prejudice as moot. 6 I. FACTUAL BACKGROUND 7 In 1921, the United States government purchased the 27.5 acres comprising the 8 Cloverdale Rancheria for the use of the Cloverdale Pomo Indians. (FAC ¶ 23.) In 1958, 9 Congress enacted the California Rancheria Act (“Rancheria Act” or “the Act”), Pub. L. 85-671, 10 72 Stat. 619, amended by Pub. L. 88-419, 78 Stat. 390. The Rancheria Act provided that the lands 11 and other assets of certain specified Indian Rancherias, including the Cloverdale Rancheria, were 12 to be distributed to the members of each rancheria and the federal trust relationship dissolved. 13 (FAC ¶ 26.) Federal supervision of the Cloverdale Rancheria and the Cloverdale Pomo Indians 14 subsequently was terminated. (FAC ¶ 27.) 15 In 1979, a class action suit was brought against the United States on behalf of the 16 distributees of seventeen of the Indian Rancherias terminated under the California Rancheria Act, 17 including those of Cloverdale Rancheria. Tillie Hardwick, et al. v. United States of America, et 18 al., No. C-79-1710 (N.D. Cal.) (“Hardwick”). The plaintiffs in that case asserted that the manner 19 in which the United States terminated federal supervision of the tribes violated the Rancheria Act. 20 On December 22, 1983, the parties entered into a Stipulated Judgment certifying a class 21 consisting of all persons who received any of the assets of certain rancherias, including the 22 Cloverdale Rancheria, and restoring them to the status of Indians under the laws of the United 23 States. (FAC ¶ 29.) The stipulated judgement provides that: The Secretary of the Interior shall recognize the Indian Tribes, Bands, Communities or groups of the [the listed rancherias] as 24 25 26 27 28 2 While the instant motions were pending, Plaintiffs filed a motion seeking leave to file a second amended complaint. (See Docket No. 62.) That motion is set to be heard on June 24, 2011. This order is without prejudice with respect to whether the Court has jurisdiction to hear Plaintiffs’ proposed additional claims. 2 Case No. 5:10-cv-1605 JF/PVT ORDER GRANTING MOTION TO DISMISS FOR LACK OF SUBJECT-MATTER JURISDICTION; TERMINATING MOTION TO INTERVENE AS MOOT (JFLC3) 1 3 Indian entities with the same status they possessed prior to distribution of the assets of these Rancherias under the California Rancheria Act, and said Tribes, Bands[,] Communities and groups shall be included on the Bureau of Indian Affairs’ Federal Register list of recognized tribal entities. 4 (Id.) The Cloverdale Rancheria was returned to the list of federally recognized tribes on February 5 13, 1983, and it remains on the list. (FAC ¶ 30.) 2 6 The organization of a tribal government for the Cloverdale Rancheria has been the subject 7 of prolonged dispute, much of which is not necessary to relate for purposes of this motion. It is 8 relevant, however, that on April 1, 1997, the Department of Interior’s Board of Indian Appeals 9 (“IBIA”) dissolved the recognition of two competing governments claiming to represent the 10 Cloverdale Rancheria and determined that the only individuals entitled to participate in the 11 reorganization of a tribal government were members of the Hardwick class, including 12 distributees, dependent members, and lineal descendants of distributees or dependent members. 13 Alan-Wilson v. Sacramento Area Director, 30 IBIA 241, 257 (1997) (“Alan-Wilson I”). The IBIA 14 directed the Area Director to facilitate discussions with all individuals recognized as eligible to 15 organize the Cloverdale Rancheria’s tribal government under Hardwick. Id. On November 8, 16 1997, a meeting of eligible persons was organized by the BIA Sacramento Area Tribal 17 Operations Officer. See Alan-Wilson v. Acting Sacramento Area Director, 33 IBIA 55 (1998) 18 (“Alan-Wilson II”). The attendees at the meeting passed a resolution supporting a tribal council 19 elected on June 1, 1996 (“June 1996 Interim Council”) as their interim governing body. Id. The 20 June 1996 Interim Council then was recognized by the Area Director as the rightful governing 21 body of the Cloverdale Rancheria. Id. That decision was upheld in subsequent litigation. See id.; 22 see also Alan-Wilson v. United States, No. C-9601037 CW (N.D. Cal.) (Judgment Sept. 16, 23 1999), aff’d sub nom Cloverdale Rancheria of Pomo Indians of California v. United States, 23 24 Fed. Appx. 819 (9th Cir. 2001). 25 However, disputes over the government of the Rancheria continued. Plaintiffs contend 26 that the June 1996 Interim Tribal Council took various actions–including expanding tribal 27 membership, holding tribal elections, and adopting a constitution–without proper notice or 28 3 Case No. 5:10-cv-1605 JF/PVT ORDER GRANTING MOTION TO DISMISS FOR LACK OF SUBJECT-MATTER JURISDICTION; TERMINATING MOTION TO INTERVENE AS MOOT (JFLC3) 1 authority from those authorized to organize the Rancheria’s government. (See FAC ¶¶ 40-47.) 2 On March 12, 2008, the BIA’s Central California Agency Superintendent declined to approve the 3 constitution adopted by the Interim Council, because it was not adopted by the class of 4 individuals identified in Hardwick. (FAC Ex. 6.) Meanwhile, in 2007, the Committee to 5 Organize the Cloverdale Rancheria Government began its own efforts to conduct elections. (FAC 6 ¶ 58.) The Committee claims to have worked with officials and staff of the BIA to identify a 7 complete list of Hardwick class members who are eligible to participate, and to have held 8 elections in December 2008 and January 2009 adopting a constitution and electing a tribal council 9 (“January 2009 Council”). (FAC ¶ 58-63.) 10 II. PROCEDURAL BACKGROUND 11 On March 25, 2009, Plaintiffs made a formal request to the Central California Agency 12 Superintendent to recognize their formal organization of the Cloverdale Rancheria, including the 13 December 2008 constitution and January 2009 Council. On April 2, 2009, in response to a 14 request from the BIA, Plaintiffs filed a clarification of their request for recognition confirming 15 that they were not seeking a secretarial election under the Indian Reorganization Act, 25 U.S.C. § 16 476(a), but rather recognition of the 2009 Council as a matter of inherent tribal sovereignty under 17 25 U.S.C. § 476(h). (FAC Ex. 4-B.) On June 19, 2009, the Central California Agency 18 Superintendent denied Plaintiffs’ request, stating that the BIA had no authority to give recognition 19 to a tribal governing document. (FAC Ex. 4-C.) Plaintiffs filed an appeal, with respect to which 20 the BIA Regional Director was required by regulation to issue a decision not later than December 21 1, 2009. (FAC Ex. 4-D.) 22 The Regional Director did not issue a timely decision on Plaintiffs’ appeal, and Plaintiffs 23 filed the instant action on April 14, 2010, alleging that Defendants unlawfully denied recognition 24 of the tribal government and unlawfully failed to decide their appeal. (Dkt. 1.) On June 2, 2010, 25 the Regional Director issued a decision upholding the Superintendent’s decision, finding that 26 there was insufficient documentation to establish that only Hardwick class members had voted in 27 the election, and that there was no basis upon which the BIA could determine whether only 28 4 Case No. 5:10-cv-1605 JF/PVT ORDER GRANTING MOTION TO DISMISS FOR LACK OF SUBJECT-MATTER JURISDICTION; TERMINATING MOTION TO INTERVENE AS MOOT (JFLC3) 1 eligible individuals participated because there was no request for a secretarial election or evidence 2 that the tribe had conferred any authority on the BIA concerning the validity of its elections. 3 (FAC Ex.8.) On July 6, 2010, Plaintiffs appealed the Regional Director’s decision to the IBIA. 4 (FAC Ex. 9.) 5 On July 9, 2010, Plaintiffs filed an amended complaint in this action alleging three claims 6 for relief. First, Plaintiffs allege that Defendants were obligated under Hardwick to provide 7 necessary and appropriate assistance to their efforts to organize the government of the Cloverdale 8 Rancheria, and unlawfully have failed to perform such actions. Second, Plaintiffs claim that 9 Defendants were obligated to recognize their duly authorized organization of the Rancheria and 10 unlawfully have failed to do so. Third, Plaintiffs allege that Defendants violated their equal 11 protection rights by failing to treat them in the same manner as other tribes in the Harwick 12 plaintiff class. 13 On October 8, 2010, after hearing argument on the instant motions, the Court asked 14 Defendants to seek expedited consideration of Plaintiffs’ administrative appeal by the Interior 15 Board of Indian Appeals (“IBIA”) and stayed the case for ninety days. Eighty-nine days later, on 16 January 5, 2011, the Regional Director of the BIA petitioned the IBIA to expedite consideration 17 of Plaintiffs’ administrative appeal. On February 1, 2011, the IBIA issued an order denying the 18 request for expedited consideration. 19 20 III. STANDARD OF REVIEW A. 21 Motion to Dismiss for Lack of Subject Matter Jurisdiction Pursuant to Fed. R. Civ. P. 12(b)(1), a defendant may move to dismiss a complaint for 22 lack of subject matter jurisdiction. The plaintiff bears the initial burden of proving that subject 23 matter jurisdiction exists. Robinson v. United States, 586 F.3d 683, 685 (9th Cir. 2009). 24 B. 25 Jurisdiction Under the APA The APA authorizes suit by “[a] person suffering legal wrong because of agency action, or 26 adversely affected or aggrieved by agency action within the meaning of a relevant statute.” 5 27 U.S.C. § 706. However, a federal court has authority to review only “final agency action” 28 5 Case No. 5:10-cv-1605 JF/PVT ORDER GRANTING MOTION TO DISMISS FOR LACK OF SUBJECT-MATTER JURISDICTION; TERMINATING MOTION TO INTERVENE AS MOOT (JFLC3) 1 pursuant to 5 U.S.C.§ 704, unless another statute provides a right of action. Oregon Natural 2 Desert Ass’n v. U.S. Forest Service, 465 F.3d 977, 982 (9th Cir. 2006). Courts also have 3 authority to “compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. 4 §706(1). However, “a claim under § 706(1) can proceed, only where a plaintiff asserts that an 5 agency failed to take a discrete agency action that it is required to take.” Hells Canyon 6 Preservation Council v. U.S. Forest Serv., 593 F.3d 923, 932 (2010) (quoting Norton v. Southern 7 Utah Wilderness Alliance (SUWA), 542 U.S. 55, 64 (2004)). A court’s power to “compel agency 8 action” is carefully circumscribed to situations where an agency has ignored a specific legislative 9 command. Id. The Supreme Court made clear that a “‘failure to act’ is not the same thing as a 10 ‘denial.’” SUWA, 542 U.S. at 63. Finally, a court does not reach the question of whether a delay 11 in taking action was unreasonable until it has found that the agency has failed to take a discrete, 12 non-discretionary action. See id. at 63 n.1 (“[A] delay cannot be unreasonable with respect to an 13 action that is not required.”). 14 IV. DISCUSSION 15 Defendants move to dismiss Plaintiffs’ amended complaint for lack of subject matter 16 jurisdiction, alleging that Plaintiffs failed to exhaust their administrative remedies as required by 17 § 704 of the APA. However, Plaintiffs have disclaimed any challenge to the agency’s decision of 18 June 19, 2009 or June 2, 2010. Pl.’s Op. at 6 n.4. Instead, they argue that Defendants were 19 legally required both as a matter of general federal Indian law and under Hardwick to recognize 20 the Cloverdale Rancheria–and in particular to recognize the results of the 2008 and 2009 elections 21 conducted by the Committee–and unreasonably have delayed taking that action. Id. at 8. They 22 rely upon §706(1) of the APA, which grants the Court authority to “compel agency action 23 unlawfully withheld or unreasonably delayed.” 24 Plaintiffs note correctly that “[w]here an agency has failed to take action it is legally 25 required to take, or has unreasonably delayed in taking such action, the APA authorizes a 26 reviewing court to provide relief.” Id. (citing SUWA, 542 U.S. at 63-64 & n.1). However, in 27 SUWA, the Supreme Court made clear that in order to bring suit against an agency for failing to 28 6 Case No. 5:10-cv-1605 JF/PVT ORDER GRANTING MOTION TO DISMISS FOR LACK OF SUBJECT-MATTER JURISDICTION; TERMINATING MOTION TO INTERVENE AS MOOT (JFLC3) 1 act, a plaintiff must show that the agency has ignored a specific legislative command. Plaintiffs 2 have not made that showing here. 3 First, Plaintiffs claim that Defendants were “legally required to recognize a Cloverdale 4 Rancheria tribal government” as a matter of general federal Indian law. Pl.’s Op. at 8. Plaintiffs 5 do not point to a specific legislative command for this proposition; instead, they refer to the 6 expansive provision 25 U.S.C. § 2, which grants the Secretary power to manage “all Indian affairs 7 and [] all matters arising out of Indian relations.” While they do cite three cases that emphasize 8 the Department of Interior’s responsibility to assist in resolution of disputes within tribes, all three 9 cases relate to APA claims challenging final agency action under § 706(2), not the BIA’s failure 10 to take a required action under § 706(1). Central Valley Miwok Tribe v. United States, 515 F.3d 11 1262, 1267 (D.C. Cir. 2008); Goodface v. Grassrope, 708 F.2d 335, 339 (8th Cir. 1983); Tarbell 12 v. Dept. of Interior, 307 F. Supp. 2d 409, 423 (N.D.N.Y 2004). In fact, far from supporting 13 Plaintiffs’ position that Defendants had a nondiscretionary duty to recognize Plaintiffs’ tribal 14 government, Central Valley Miwok Tribe emphasized the Interior Department’s broad discretion 15 in fulfilling its statutory duties with respect to the recognition of a tribal constitution under 25 16 U.S.C § 476(h). 515 F.3d at 1267. 17 It is conceivable that if the Secretary were to fail to respond to Plaintiffs’ request for 18 recognition entirely, the delay could eventually constitute final agency action. See Cobell v. 19 Norton, 240 F.3d 1081, 1095 (D.C. Cir. 2001) (“[W]here an agency is under an unequivocal 20 statutory duty to act, failure to act constitutes, in effect, an affirmative act that triggers ‘final 21 agency action’ review. Were it otherwise, agencies could effectively prevent judicial review of 22 their policy determinations by simply refusing to take final action.” (internal citations and 23 quotation marks omitted)). However, that is not the case here. Defendants did not fail to act on 24 Plaintiffs’ request; they denied it. 25 To the extent that Plaintiffs seek to challenge Defendants’ failure to recognize the 2009 26 Council, their claim is better understood as contesting Defendants’ denial of recognition rather 27 than a failure to recognize. The Supreme Court has held that an agency’s act of saying no to a 28 7 Case No. 5:10-cv-1605 JF/PVT ORDER GRANTING MOTION TO DISMISS FOR LACK OF SUBJECT-MATTER JURISDICTION; TERMINATING MOTION TO INTERVENE AS MOOT (JFLC3) 1 request properly is challenged under § 706(2) rather than § 706(1). SUWA, 542 U.S. at 63. The 2 Ninth Circuit has similarly cautioned against the use of § 706(1) as an “attempt to end run” the 3 requirements of § 706(2). Hells Canyon Preservation Council, 593 F.3d. at 933; See also 4 Ecology Ctr., Inc. v. United States Forest Serv., 192 F.3d 922 (9th Cir. 1992) (refused to allow 5 plaintiffs to evade the finality requirement with complaints about sufficiency of agency action 6 “dressed up as an agency’s failure to act”). 7 Plaintiffs claim that Defendants failed to meet their obligations to “assist with the effective 8 organization of the Cloverdale Rancheria government” as requested by Hardwick presents a 9 slightly different issue. While neither party has directed the Court’s attention to language from 10 the Stipulated Judgment imposing a specific duty on Defendants to assist in tribal reorganization, 11 Defendants concede that the Hardwick Stipulation “included a requirement for the BIA to help 12 the members of the Cloverdale Rancheria ‘Hardwick Class’ initially organize the government of 13 their tribe.” Def.’s Reply at 3. Defendants contend, however, that this obligation was fulfilled 14 when the BIA assisted in the November 8, 1997 meeting that resulted in the recognition of the 15 June 1996 Interim Council. Id. Plaintiffs ask the Court to engage in the “fact intensive” analysis 16 of the six “TRAC factors” to determine if Defendants have unreasonably delayed fulfilling their 17 obligations under Hardwick. Pl.’s Op. at 9 (citing Telecommunications Research and Action 18 Center v. FCC (“TRAC”), 750 F.2d 70 (D.C. Cir. 1984)). 19 Plaintiffs provide no authority to support their contention that an agency’s failure to 20 comply with a Stipulated Judgment can give rise to an action under the APA. To the contrary, “a 21 court’s ability to ‘compel agency action’ is carefully circumscribed to situations where an agency 22 has ignored a specific legislative command.” Hells Canyon, 593 F.3d at 932 (emphasis added). If 23 Plaintiffs’ position is that Defendants have violated a court order, the proper claim for relief 24 would appear to be one for enforcement of that order. 25 Even if Defendants’ duties under Hardwick could serve as a basis for an APA action, 26 Plaintiffs have not identified a discrete, nondiscretionary command with which Defendants have 27 failed to comply. The Supreme Court has emphasized that unlike the failure to promulgate a rule 28 8 Case No. 5:10-cv-1605 JF/PVT ORDER GRANTING MOTION TO DISMISS FOR LACK OF SUBJECT-MATTER JURISDICTION; TERMINATING MOTION TO INTERVENE AS MOOT (JFLC3) 1 or take some decision by a statutory deadline “[g]eneral deficiencies in compliance . . . lack the 2 specificity requisite for agency action.” SUWA, 542 U.S. at 63, 66. Even assuming that 3 Hardwick does mandate that Defendants assist in creating an “effective organization of the 4 Cloverdale Rancheria,” such a command leaves considerable discretion in the hands of the 5 agency. The APA does not allow courts to engage in “abstract policy disagreements” with federal 6 agencies. See id. at 66. 7 V. CONCLUSION 8 9 Good cause therefor appearing, this action is hereby dismissed for lack of subject matter jurisdiction. Because the Court has determined that it is without jurisdiction to hear Plaintiffs’ 10 claims, Proposed Intervenor-Defendant’s motion to intervene, and its related motions to dismiss, 11 motion to strike named Plaintiff, and motion for sanctions will be terminated without prejudice as 12 moot. This order is without prejudice to consideration of Plaintiffs’ pending motion for leave to 13 file a second amended complaint. 14 15 16 IT IS SO ORDERED. 17 DATED: May 17, 2011 __________________________________ 18 JEREMY FOGEL United States District Judge 19 20 21 22 23 24 25 26 27 28 9 Case No. 5:10-cv-1605 JF/PVT ORDER GRANTING MOTION TO DISMISS FOR LACK OF SUBJECT-MATTER JURISDICTION; TERMINATING MOTION TO INTERVENE AS MOOT (JFLC3)
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