Case 2:16-cv WBS-CKD Document 20 Filed 08/08/16 Page 1 of 24 UNITED STATES DISTRICT COURT

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1 Case :-cv-0-wbs-ckd Document Filed 0/0/ Page of SHEPPARD, MULLIN, RICHTER & HAMPTON LLP A Limited Liability Partnership Including Professional Corporations ROBERT J. URAM, Cal. Bar No. ruram@sheppardmullin.com JAMES F. RUSK, Cal. Bar No. jrusk@sheppardmullin.com Four Embarcadero Center, th Floor San Francisco, California - Telephone:..0 Facsimile:.. Attorneys for THE CALIFORNIA VALLEY MIWOK TRIBE, THE TRIBAL COUNCIL, YAKIMA DIXIE, VELMA WHITEBEAR, ANTONIA LOPEZ, MICHAEL MENDIBLES, GILBERT RAMIREZ, JR., ANTOINETTE LOPEZ, and IVA SANDOVAL UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA, SACRAMENTO DIVISION CALIFORNIA VALLEY MIWOK TRIBE, a federally-recognized Indian tribe, THE GENERAL COUNCIL, SILVIA BURLEY, RASHEL REZNOR; ANGELICA PAULK; and TRISTIAN WALLACE, v. Plaintiffs, SALLY JEWEL, in her official capacity as U.S. Secretary of Interior; LAWRENCE S. ROBERTS, in his official capacity as Acting Assistant Secretary of Interior - Indian Affairs; MICHAEL BLACK, in his official capacity as Director of the Bureau of Indian Affairs, Defendants. Case No. :-0 WBS CKD OPPOSITION TO PLAINTIFFS MOTION FOR AN ORDER STAYING AS-IA S DECEMBER 0, DECISION Judge: Hon. William B. Shubb Date: September, Time: :0 p.m. Courtroom

2 Case :-cv-0-wbs-ckd Document Filed 0/0/ Page of TABLE OF CONTENTS Page I. INTRODUCTION... II. FACTS... A. Tribal History... B. The Resolution and interim council... C. Miwok I and II... D. The Decision and Miwok III... E. The Tribe s election... F. The Decision and the Tribal Council s Recognition Request... G. The BIA s request for comment from the Burleys and the inception of this litigation... III. LEGAL STANDARDS... A. Injunctive relief... B. Judicial review of federal agency action... IV. ARGUMENT... A. The Burleys have not shown they are likely to succeed on the merits..... The purported enrollment of the Burleys in has no bearing on the validity of the Decision..... The Resolution did not establish a valid Tribal government.... B. The Burleys have not shown they are likely to suffer imminent and irreparable harm absent a stay..... Release of the funds is not imminent..... Release of the funds would not cause irreparable harm.... C. The balance of equities favors Intervenors.... D. An injunction is not in the public interest.... E. The Burleys requested relief is overbroad... F. The Assistant Secretary chose not to stay the Decision.... V. CONCLUSION... -ii-

3 Case :-cv-0-wbs-ckd Document Filed 0/0/ Page of Federal Cases TABLE OF AUTHORITIES Page(s) A Woman s Friend Pregnancy Res. Clinic v. Harris F.Supp.d (E.D. Cal. )... Aguayo v. Jewell No. -0, slip op. (th Cir. 0)..., California Valley Miwok Tribe v. Jewell F.Supp.d (D.D.C. ) (Miwok III)... passim California Valley Miwok Tribe v. Kempthorne No. :0-cv-0 (E.D.Cal. 0)... California Valley Miwok Tribe v. United States F.d (D.C. Cir. 0) (Miwok II)... passim California Valley Miwok Tribe v. USA F.Supp.d (D.D.C. Mar., 0) (Miwok I)... passim Caribbean Marine Services Co., Inc. v. Baldrige F.d (th Cir. )... Columbia Pictures Indus., Inc. v. Fung F.d (th Cir. )..., Goodface v. Grassrope 0 F.d (th Cir. )... Midgett v. Tri County Metro. Transp. Dist. of Oregon F.d (th Cir. 0)... Nken v. Holder U.S., S.Ct. (0)... San Luis & Delta-Mendota Water Auth. v. Locke F.d (th Cir. )... Selkirk Conservation Alliance v. Forsgren F.d (th Cir. 0)... Skydive Arizona, Inc., v. Quattrochi F.d (th Cir. )..., Stormans, Inc., v. Selecky F.d (th Cir. 0)... -iii-

4 Case :-cv-0-wbs-ckd Document Filed 0/0/ Page of Winter v. Natural Resources Defense Council, Inc. U.S., S.Ct. (0)..., Yakama Nation v. Northwest Regional Director Bureau of Indian Affairs IBIA (0)... State Cases California Valley Miwok Tribe v. Cal. Gambling Control Comm n Cal.App.th () (Miwok IV)...,,, Federal: Statutes, Rules, Regulations, Constitutional Provisions Administrative Procedure Act, U.S.C California Rancheria Act... C.F.R..(e),.(a). (e)....(b)....(c)... U.S.C.... Indian Reorganization Act, U.S.C....,, Indian Self Determination Act, Public Law..., -iv-

5 Case :-cv-0-wbs-ckd Document Filed 0/0/ Page of I. INTRODUCTION Plaintiff Silvia Burley, her two daughters and her granddaughter (Burleys) have fought since for exclusive control of the federally recognized California Valley Miwok Tribe (Tribe), claiming they are the Tribe s only members and its rightful government. The Burley s attempted power grab has spawned multiple court cases, including three published opinions that affirm the federal government s duty to protect majoritarian values in Tribal organization and reject the Burleys claims to have established a Tribal government without so much as consulting [the Tribe s] membership. California Valley Miwok Tribe v. United States, F.d, (D.C. Cir. 0) (Miwok II). The Intervenor-Defendant Tribal Council represents approximately 0 adult members of the Tribe and their children. The Tribal Council has applied to the federal Bureau of Indian Affairs (BIA) for federal recognition as the Tribe s government based on a July, Tribal election that adopted a Tribal Constitution and ratified the authority of the Tribal Council. In this case, the Burleys challenge the December 0, decision ( Decision) by the BIA that the United States does not recognize the Burleys as representing the Tribe and that it can only recognize a Tribal government formed through a process in which the entire Tribal community had an opportunity to participate. The Burleys seek to enjoin implementation of the Decision because they fear the BIA will recognize the Tribal Council formed with the consent of the Tribe s 0 members as the Tribe s government, and the California Gambling Control Commission will then distribute funds it currently holds in trust for the Tribe to the Tribal Council. The Court should deny the motion because the Burleys cannot clear the high bar for the extraordinary remedy of injunctive relief under the well-established four-factor test. The Burleys are not likely to succeed on the merits, because both the factual record and prior court decisions support the Decision s findings that (i) the Burleys are not the only members of the Tribe and (ii) the government they purported to form does not have the support or consent of the Tribal community. In attacking those findings, the Burleys merely repeat arguments the District Court for the District of Columbia rejected in overturning a BIA decision that was more favorable to the Burleys. See California Valley Miwok Tribe v. Jewell, --

6 Case :-cv-0-wbs-ckd Document Filed 0/0/ Page of F.Supp.d (D.D.C. ) (Miwok III). The Burleys did not appeal that decision and cannot relitigate it in this Court. The Burleys have not shown the financial injury they fear is imminent or irreparable, or even that it is caused by the Decision. They claim the BIA informed them it would decide by July,, whether to recognize the Intervenor Tribal Council, but the BIA only asked the Burleys to provide comments by that date it did not set a timetable for its decision or indicate what the decision would be. If and when the BIA decides to recognize the Tribal Council, the California Gambling Control Commission still must decide whether, and when, to release funds to the Tribe. Any speculative injury the Burleys might suffer would be caused by those future decisions, not by the Decision they seek to enjoin, and could be recouped by a claim for money damages if the Commission erroneously released Tribal funds. The Burleys ignore the harm to the Tribe, its members and the Tribal Council from further delaying resolution of a dispute that has already crippled the Tribe s government for more than a decade. They also ignore the public interest in protecting majoritarian values and Tribal sovereignty, which would be undermined if the Decision is enjoined. Because all four factors weigh against the Burleys motion for injunctive relief, the motion should be denied. II. FACTS The history of the Tribe and the current dispute is well documented in the published opinions resulting from the Burleys prior attempts to claim Tribal authority. A. Tribal History In, federal Office of Indian Affairs (now BIA) agent John Terrell located a group of Miwok Indians remnants of a larger band living in and near the former mining town of Sheepranch in Calaveras County, California. Miwok III, F.Supp.d at. The agent took a census of the band members he found there and noted they were [t]o some extent interchangeable in their relations with the Indians of nearby Miwok communities in Murphys, SixMile, Avery and Angles. Id. at n.. The United States acquired a small parcel of land and created a reservation for the benefit of these Indians, which was known as the Sheep Ranch --

7 Case :-cv-0-wbs-ckd Document Filed 0/0/ Page of Rancheria. Id. at. The Tribe has been recognized by the United States since then, initially as the Sheep Ranch Rancheria of Me-Wuk Indians of California and more recently as the California Valley Miwok Tribe. First Amended Complaint, ECF No., (FAC). Rancheria resident Jeff Davis, the sole eligible voter, voted in to accept application to the Tribe of the Indian Reorganization Act (IRA), U.S.C., which authorizes tribes to organize by adopting a constitution and government through a majoritarian process. Miwok III, F.Supp.d at. The Tribe did not organize at that time. Id. In, the BIA began proceedings to terminate the United States relationship with the Tribe under the California Rancheria Act, but it did not complete the process and federal recognition of the Tribe was never terminated. Id. As part of that process, the BIA did convey fee title in the Rancheria property to the sole resident of the Rancheria at that time, Mabel Hodge Dixie. Id. B. The Resolution and interim council Ms. Dixie s son Yakima Dixie was the only Tribal member living on the Rancheria property in when Silvia Burley wrote for Yakima's signature, a statement purporting to enroll herself, her two children, Rashel Roznor [sic] and Anjelica Paulk, and her granddaughter, Tristian Wallace, into the Tribe. Id. at 0. Later in, Dixie and Burley signed a document, Resolution #GC--0 (the Resolution), which recited that the membership of the Tribe consisted of at least the Burleys and Dixie, and purported to establish a general council The record reflects that the Rancheria currently covers 0. acre, F.Supp.d at, but it may have included acres when first purchased. See California Valley Miwok Tribe v. USA, F.Supp.d, - (D.D.C. Mar., 0) (Miwok I), affirmed, F.d. The difference is not germane to this litigation. Although Jeff Davis was the only eligible IRA voter by virtue of his residence on the Rancheria at that time, he was not the only Tribal member; the Tribe s membership was never limited to those people living on the tiny Rancheria property at any given time. Decl. of M. Corrales, ECF No., Exhibit, pp., n. ( Decision). In the Decision and throughout the federal court opinions involving this Tribe, organize and reorganize are used interchangeably to refer to the process of adopting tribal governing documents through a majoritarian process whether under procedures prescribed by the IRA, see U.S.C. (a)-(d), or under other procedures, see U.S.C.. Regardless of the procedures used, organization must reflect the will of a majority of the tribal community. California Valley Miwok Tribe v. USA, F.Supp.d, (D.D.C. Mar., 0) (Miwok I), affirmed, F.d. --

8 Case :-cv-0-wbs-ckd Document Filed 0/0/ Page of consisting of all adult members. They did not involve any other members of the Tribe in this process. Id. at 0-. In, Burley submitted a letter to the BIA claiming she had replaced Dixie as the leader of the Tribe under the Resolution a claim Mr. Dixie disputed. Id. at -. The BIA initially accepted Burley as the head of an interim Tribal Council and, from through 0, provided that council with federal funds under the Indian Self Determination Act, Public Law, for the purpose of organizing the Tribe. California Valley Miwok Tribe v. USA, F.Supp.d, 0 (D.D.C. Mar., 0) (Miwok I), affirmed, F.d. See also Miwok II, F.d at n.; Miwok III, F.Supp.d at, n.. During that time, Burley submitted a series of proposed Tribal constitutions to the BIA, seeking to demonstrate that the Burleys had properly organized the Tribe. Miwok II, F.d at. But the constitutions reflected the involvement of only Burley and her two adult daughters and would have limited Tribal membership to only them and their descendants, even though Burley herself estimated the Tribe s membership at around 0 people. Id. at -; Miwok I, F.Supp.d at n.. C. Miwok I and II The BIA rejected the Burley constitutions, explaining that [Burley] would need to at least attempt to involve the entire tribe in the organizational process before the Secretary would give approval. Miwok II, F.d at. The BIA also rescinded its interim recognition of Burley and the general council and terminated federal funding to the council, stating in a February 0 decision that it does not recognize any tribal government for the Tribe. Miwok III, F.Supp.d at -. Burley sued the United States in the Tribe s name, claiming the IRA required the BIA to approve her constitution, id. at. She argued, in the alternative, that the BIA had previously Congress has charged the Secretary of the Interior with authority over Indian affairs, U.S.C., and the Secretary has delegated this responsibility to the BIA, which is headed by the Department of the Interior s Assistant Secretary Indian Affairs. See Miwok I, F.Supp.d at n.. Burley sued the United States in this court in 0, alleging the BIA had unlawfully failed to renew funding contracts with her tribal council. The case was dismissed for failure to exhaust administrative remedies. California Valley Miwok Tribe v. Kempthorne, No. :0-cv-0 (E.D.Cal. 0). --

9 Case :-cv-0-wbs-ckd Document Filed 0/0/ Page of recognized the general council under the Resolution with her as its leader, and could not reverse that position despite her failure to identify the Tribe s members and involve them in forming a Tribal government as the BIA contemplated when it provided funds for Tribal organization. Miwok I, F.Supp.d at. The district court in Miwok I upheld the refusal to recognize the Burley government, finding it consistent with the BIA s responsibility to ensure that [the] Secretary deals only with a tribal government that actually represents the members of a tribe. F.Supp.d at. The D.C. Circuit affirmed, holding that Burley s antimajoritarian gambit deserves no stamp of approval from the Secretary. Miwok II, F.d at. D. The Decision and Miwok III After Miwok I, the BIA attempted in 0-0 to help the Tribe involve the Tribal community in the organization process, but Burley refused to participate and thwarted the BIA s effort by filing multiple administrative appeals, which culminated in a referral to the Assistant Secretary Indian Affairs, the BIA s highest official. Miwok III, F.Supp.d at -. The Assistant Secretary issued a decision on August, ( Decision) that reversed the BIA s prior position and found (i) the Tribe s membership was limited to the four Burleys and Yakima Dixie, and (ii) the Tribe was already organized with a general council form of government under the Resolution. Id. at. The Intervenors in this action filed suit challenging the Decision, and the Burleys intervened in the name of the Tribe. The district court found the Decision arbitrary and capricious because the Assistant Secretary unreasonably assumed the Tribe s membership was limited to five people despite a record replete with evidence of a much larger Tribal community. Id. at. The court also found the Assistant Secretary s conclusion that the Resolution established a valid Tribal government to be unreasonable in light of the record. Id. at -0. The court observed that The Burleys have never accounted for the millions of dollars in federal and state funds they received in the name of the Tribe between and 0. For litigation purposes, the Burleys count Yakima Dixie as the fifth member of the Tribe, but they purported to disenroll him in 0. Miwok I,, F.Supp.d at. --

10 Case :-cv-0-wbs-ckd Document Filed 0/0/ Page of when an internal dispute questions the legitimacy of the initial tribal government, the BIA must ascertain whether the initial government is a duly constituted government and cannot merely repeat[] the rhetoric of federal noninterference with tribal affairs. Id. at 0 (italics added; quotation marks and citations omitted). The Assistant Secretary s acceptance of the general council, despite its failure to involve the Tribe s members, violated the United States distinctive obligation of trust to the Tribe. Id. (quoting Seminole Nation v. United States, U.S., ()). On December,, the district court remanded the Decision to the Secretary of the Interior for reconsideration consistent with its decision. Id. at. E. The Tribe s election While the administrative appeals and federal litigation were ongoing, the Tribal Council continued efforts to involve the entire Tribal community in Tribal organization. Decl. of Robert Uram, Exhibit A, p. (Recognition Request). The Council members conducted extensive outreach to the Tribal community through monthly open meetings, mailings, meetings and phone calls with local Miwok organizations and individuals, and participation in cultural activities and Native American gatherings. Id. Under the Council s leadership, the Tribal community met repeatedly to draft and discuss a Tribal constitution. Recognition Request, Attachment, pp. -. After an unsuccessful attempt to ratify a Tribal constitution in, the Tribal Council called an election for July,, for the Tribal community to consider ratifying a revised constitution ( Constitution). Recognition Request, Attachment, p.. By that time, the Tribal Council had identified approximately 0 adults who were eligible and desired to The Burleys argue the district court in Miwok III did not have the benefit of deposition testimony that the Burleys took from Yakima Dixie in in related state court litigation, in which Mr. Dixie allegedly admitted that he resigned as chairman of the five-person general council created under the Resolution. MPA at -. This claim, while disputed, is ultimately irrelevant in light of the Decision s finding that the Resolution did not create a valid Tribal government. Decision at. See California Valley Miwok Tribe v. Cal. Gambling Control Comm n, Cal.App.th, 0 () (Miwok IV). In any case, the Burleys provided the deposition to the Assistant Secretary before he made the Decision. --

11 Case :-cv-0-wbs-ckd Document Filed 0/0/ Page of participate in Tribal organization. Id. Of the 0 eligible voters, more than half () cast ballots in the election, and they overwhelmingly approved the Constitution by a vote of 0 to, with abstentions. Id. at. The Burleys had notice of the organization process but chose not to participate with the Tribe. Id. at. The Tribal Council informed the Assistant Secretary of the election results on July, and stated that it intended to seek BIA recognition of its government after Miwok III was resolved. Id. at. F. The Decision and the Tribal Council s Recognition Request Two years after the court s remand in Miwok III, the Assistant Secretary issued the Decision. The Decision unequivocally rejected the Burleys claims that the Tribe consists of only five members and that the Resolution established a valid Tribal government. Decl. of M. Corrales, ECF No., Exhibit, pp., ( Decision). Accordingly, the Decision determined that Ms. Burley and her family do not represent the [Tribe]. Id. at. The Decision determined that the individuals eligible to participate in the reorganization of the Tribe are the Mewuk Indians for whom the [Sheep Ranch] Rancheria was acquired and their descendants. Id. at. The Decision identified those individuals as: () the individuals listed on the Terrell Census and their descendants; () the descendants of Rancheria resident Jeff Davis (who was the only person on the IRA voter list for the Rancheria); and () the heirs of Mabel Dixie, as identified by the Department of Interior s Office of Hearings and Appeals in, and their descendants. Id. The Decision determined that, consistent with Miwok I, II and III, these individuals (collectively the Eligible Groups) must be given an opportunity to take part in any Tribal organization. Id. at,. Recognizing that the Indians named on the Terrell Census had relatives in other Calaveras County communities, the Decision also determined that descendants of Miwok Indians named on the census Various estimates placed the number of eligible people at approximately 0, see Miwok III, F.Supp.d at, but by some individuals chose not to participate with the Tribe for instance, those who were eligible for membership in the Wilton Rancheria and chose to join that tribe, which regained federal recognition in 0. Recognition Request, Attachment, p.. --

12 Case :-cv-0-wbs-ckd Document Filed 0/0/ Page of of Indians of Calaveras County ( Census) may be included in Tribal organization at the discretion of the Eligible Group members. Decision at. The Decision determined the BIA could not recognize the general council established under the Resolution as a valid Tribal government because the people who approved the Resolution are not a majority of those eligible to take part in the reorganization of the Tribe. Id. As a result of the Decision, the Burleys do not represent the [Tribe] and have the same status as any other member of the Eligible Groups. Id. The Decision also considered the Tribe s Constitution, which recognizes all Eligible Group members and Census descendants as eligible for Tribal membership. Id. at. The Decision found the Tribe had not yet demonstrated the Constitution was validly ratified because the record did not disclose whether adequate notice of the election was provided to members of the Eligible Groups. Id. The Decision authorized the BIA s Pacific Regional Director to receive additional submissions for the purpose of determining whether the Constitution was validly ratified. Id. On April,, the Tribal Council submitted additional information to the Regional Director and requested that she recognize the Constitution and Tribal Council ratified through the July, election. Recognition Request at. The Recognition Request included a report prepared at the Tribal Council s direction that documented the results of the election and the outreach and notice to members of the Eligible Groups preceding the election. Recognition Request, Attachment. The Recognition Request showed that of the eligible voters who participated in the election, were Eligible Group members, and the remaining voters were Census descendants who participated with the consent of the Eligible Group members. Recognition Request pp. -, Attachment pp. -,. To date, the BIA has not issued a decision on the Tribal Council s Recognition Request. Based on information the Burleys provided to the BIA, the Tribal Council believes the Burleys are members of the Eligible Groups and thus eligible to participate in Tribal organization, but the Burleys have chosen not to participate with the rest of the Tribal community. WhiteBear Declaration. --

13 Case :-cv-0-wbs-ckd Document Filed 0/0/ Page of G. The BIA s request for comment from the Burleys and the inception of this litigation On June,, the BIA notified the Burleys that the Tribal Council had requested recognition of the Constitution, provided the Burleys with a copy of the Tribal Council s entire Recognition Request, and invited the Burleys to provide comments on the process used to conduct the election. The letter stated in part, By close of business on July,, please provide your comments and any documents that support your position. Decl. of M. Corrales, ECF No., Exhibit (emphasis in original). The letter did not say when the BIA would decide whether to recognize the Constitution. Rather than providing comments to the BIA, the Burleys filed this lawsuit on June,, challenging the validity of the Decision. ECF No.. On July, the Burleys filed an ex parte application for an emergency stay of the Decision, claiming the BIA s June letter had notified the Burleys that the BIA intended to act on the Recognition Request by July and apparently assuming the BIA would approve the Recognition Request. ECF No., p.. The Court denied the ex parte application on July, without prejudice to the refiling of a properly noticed motion. ECF No.. The Burleys filed the operative motion for stay of the Decision on July,, with a hearing date of August (ECF No. ), along with an ex parte application for an order shortening time to hear the motion (ECF No. ). On July, the Court denied the application for an order shortening time, ruling that the Burleys had not made a sufficient showing of necessity. ECF No.. On July, the Burleys re-noticed their motion for stay with a new hearing date of September,. ECF No.. The Burleys Complaint (ECF No. ) and First Amended Complaint (ECF No. ) did not name the Tribal Council or its members as parties. A motion to intervene has been filed concurrently with this opposition on behalf of the Tribe, the Tribal Council and the Council members. --

14 Case :-cv-0-wbs-ckd Document Filed 0/0/ Page of III. LEGAL STANDARDS Although styled as a motion for stay of the Decision, the Burleys motion seeks more than that it seeks injunctive relief to prevent the BIA from making a decision on the Tribal Council s Recognition Request. See Nken v. Holder, U.S.,, S.Ct. (0) (a stay temporarily divest[s] an order of enforceability, while an injunction tells someone what to do or not to do ). The difference is immaterial because the same standard guides the court s decision whether to grant a stay or an injunction. See id. at (citing Winter v. Natural Resources Defense Council, Inc., U.S., S.Ct. (0); see also id. at (J. Alito, dissenting). A. Injunctive relief A preliminary injunction (like a stay) is an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief. Winter, supra, U.S. at. It is never a matter of right, even if irreparable injury might otherwise result. Nken, U.S. at -. The Burleys bear the burden of showing they are likely to succeed on the merits, they are likely to suffer irreparable harm in the absence of preliminary relief, the balance of equities tips in their favor, and an injunction is in the public interest. Winter, U.S. at (italics added). Winter rejected the idea that the mere possibility of irreparable harm can justify an injunction; irreparable injury must be likely. Id. at. If granted, [a]n injunction should be tailored to eliminate only the specific harm alleged, Skydive Arizona, Inc., v. Quattrochi, F.d, (th Cir. ) (quotation marks and citation omitted), and should be no more burdensome to the defendant than necessary to provide complete relief. Columbia Pictures Indus., Inc. v. Fung, F.d, (th Cir. ) (quoting L.A. Haven Hospice, Inc. v. Sebelius, F.d, (th Cir. )). An overbroad The Decision does not recognize the Tribe s Constitution or mandate that the BIA do so it explicitly declines to recognize any Tribal government and leaves it to the Regional Director to determine whether sufficient evidence exists to justify federal recognition of the Constitution. Decision at -. Thus, recognition of the Constitution and Tribal Council would not merely implement the Decision. See ECF No., p.. --

15 Case :-cv-0-wbs-ckd Document Filed 0/0/ Page of injunction is an abuse of discretion. Stormans, Inc., v. Selecky, F.d, (th Cir. 0) (quotation marks and citation omitted). B. Judicial review of federal agency action The Court reviews the merits of the Burleys challenge to the Decision under the Administrative Procedure Act, which compels federal courts to uphold agency actions unless they are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. U.S.C. 0()(A). Under this standard, the court will affirm an agency action if the agency has articulated a rational connection between the facts found and the conclusions made. San Luis & Delta-Mendota Water Auth. v. Locke, F.d, (th Cir. ) (quotation marks and citation omitted). The arbitrary or capricious standard is a deferential standard of review under which the agency s action carries a presumption of regularity. Id. Courts must not substitute [their] judgment for that of the agency, but instead must uphold the agency decision so long as the agency has considered the relevant factors and articulated a rational connection between the facts found and the choice made. Selkirk Conservation Alliance v. Forsgren, F.d, - (th Cir. 0) (citation omitted). IV. ARGUMENT The Burleys make little effort to meet their burden, offering three scant pages of conclusory argument that fails to establish even one of the injunctive relief factors is met here let alone all four. See Memorandum of Points and Authorities, ECF No., pp. - (MPA). Most of their arguments on the merits address the district court s rejection of the Decision in Miwok III not the validity of the Decision. The only alleged harm they identify is speculative, as they assume the BIA will recognize the Constitution and Tribal Council, and that the California Gambling Control Commission will then release funds to the Tribal Council. Even if those events were certain to occur, the Burleys identify no legitimate interest in preventing the Tribe s federally recognized government from accessing funds held in trust for the Tribe (not for the Burleys), and they fail to give any weight to the harm the Tribe and its members will suffer from further delay in reestablishing a government-to-government relationship with the United States and gaining access to funds for essential Tribal services and programs. Finally, the --

16 Case :-cv-0-wbs-ckd Document Filed 0/0/ Page of Burleys ignore the strong public interest in respecting tribal sovereignty and protecting majoritarian values against power grabs by rogue factions like the Burleys. See Aguayo v. Jewell, No. -0, slip op. at, (th Cir. 0) (citing Miwok II, F.d ). A. The Burleys have not shown they are likely to succeed on the merits. The Burleys claim the Decision was erroneous as a matter of law because (i) the purported enrollment of the Burleys as Tribal members in was not fraudulent and did not compromise the interests of Yakima Dixie, his brother Melvin Dixie or other unenrolled potential members; and (ii) the Decision should have recognized the general council created by the Resolution, which the BIA recognized for several years after. Both arguments lack merit.. The purported enrollment of the Burleys in has no bearing on the validity of the Decision. The district court in Miwok III ruled that the Decision missed the first step in the analysis by assuming the Tribe s membership was limited to five people consisting of Yakima Dixie and the four Burleys. Miwok III, F.Supp.d at -. She first found it unreasonable for the BIA to conclude that the Tribe s membership was limited to only Yakima in (and the Burleys after Yakima enrolled them), in light of a record replete with evidence that a much larger Tribal community existed at that time. Id. at -. She then found that, even if Yakima Dixie had been the only Tribal member in, the Decision failed to explain why the BIA did not have an obligation to ensure that Burley was not taking advantage of Yakima when she sought membership for her family or why the purported enrollment did not compromise Melvin Dixie s interests. Id. at. The court remanded to the BIA for reconsideration of whether the membership had been properly limited to these five individuals [i.e., the Burleys and Yakima Dixie]. Id. at. On remand, the Assistant Secretary concluded that, for purposes of organization, the Tribe s membership was not limited to only five people but should be defined by the Tribe through an organization process open to the Eligible Groups and the Census descendants ( Decision at -) i.e., the larger Tribal community. See Miwok III, F.Supp.d at. --

17 Case :-cv-0-wbs-ckd Document Filed 0/0/ Page of Given that conclusion, it is irrelevant whether the Burleys purported enrollment in prejudiced the interests of Yakima and Melvin Dixie (see MPA at -) indeed, the Decision accepts that it did not. Decision at n.. Whether or not the Burleys were properly enrolled, they and Yakima Dixie were not a majority of those eligible to participate in Tribal organization and could not form a Tribal government or determine the Tribe s membership without involving the rest of the Tribal community. Decision at. The Burleys related claim that the rest of the Tribal community were only unenrolled potential members who should have applied to the Burleys general council for membership (MPA at -) fails because it merely repeats the circular argument rejected by the district court in Miwok III. F.Supp.d at n. (rejecting the distinction between citizens and potential citizens of the Tribe because it assumes that five people had the exclusive authority to determine citizenship of the Tribe ). at. The Burleys have again missed the first step in the analysis. Id.. The Resolution did not establish a valid Tribal government. The Burleys claim the Decision should have recognized the general council created by the Resolution because the BIA previously recognized and provided federal funds to that council, causing the Burleys to develop settled expectations that the boondoggle would continue. MPA at. But the BIA s initial support of the Burleys interim council, which ended in 0, cannot convert the Burleys antimajoritarian gambit into a legitimate Tribal government. Miwok II, F.d at. The Decision explained that the council initially may have seemed a reasonable way to manage the process of Tribal organization but that actual reorganization of the Tribe can be accomplished only via a process open to the whole tribal community a standard the Resolution cannot meet since it was approved by only two people, while the Tribal community numbers in the hundreds. Decision at ; see Miwok III, F.Supp.d at. The Burleys do not challenge the Assistant Secretary s determination that the Eligible Groups and the Census descendants make up the Mewuk Indians for whom the Rancheria was acquired and their descendants. Decision at. --

18 Case :-cv-0-wbs-ckd Document Filed 0/0/ Page of The Assistant Secretary s conclusion is rational and consistent with all three Miwok opinions. The BIA initially recognized the Burleys general council on an interim basis and provided it with federal funds under the Indian Self Determination Act for the purpose of organizing the Tribe, but at least by 0 it had become clear that the Burleys had no intention of involving the Tribal community in organization. Miwok I, F.Supp.d at 0. The BIA rejected the governing documents the Burleys submitted, Miwok II, F.d at -, and in 0 rescinded its interim recognition of Burley and the general council. Miwok III, F.Supp.d at - (the BIA does not recognize any tribal government for the Tribe). The Burleys argued then that, at least since June,, the BIA has recognized [their] government and that the BIA is now trying to reverse that position. Miwok I, F.Supp.d at. But the district court upheld the BIA s decision as fulfilling its duty to ensure that Tribal governing documents reflect the will of a majority of the Tribe s members. Id. at. The D.C. Circuit affirmed, holding that tribal organization must reflect majoritarian values. F.d at -. When the BIA made a 0-degree change of course away from majoritarian values and issued the Decision recognizing the general council as the Tribe s government, the district court in Miwok III found the Decision unreasonable in light of the record. F.Supp.d at -0. On remand, the Assistant Secretary reconsidered and determined the BIA cannot recognize the actions to establish a tribal governing structure taken pursuant to the Resolution because the people who approved the resolution are not a majority of those eligible to take part in the reorganization of the Tribe. Decision at. After years and three published federal court opinions, the Burleys could not have had any reasonable expectation that the BIA would decide otherwise. B. The Burleys have not shown they are likely to suffer imminent and irreparable harm absent a stay. The Burleys motion seeks to enjoin the BIA from recognizing the Tribal Council as the Tribe s government, in order to prevent the California Gambling Control Commission from distributing to the Tribal Council funds held in trust for the Tribe. MPA at. The Burleys have --

19 Case :-cv-0-wbs-ckd Document Filed 0/0/ Page of not shown that release of the funds is imminent or that it would harm them irreparably, and their nearly six-month delay in challenging the Decision undercuts any claim that imminent injury will flow from that Decision.. Release of the funds is not imminent. [A] preliminary injunction will not be issued simply to prevent the possibility of some remote future injury. Winter, supra, U.S. at (citation and quotation marks omitted). Plaintiff must demonstrate immediate threatened harm. Caribbean Marine Services Co., Inc. v. Baldrige, F.d, (th Cir. ). See also Midgett v. Tri County Metro. Transp. Dist. of Oregon, F.d, 0 (th Cir. 0) (risk of irreparable harm in the indefinite future is not sufficient). The Burleys have not met their burden. The Burleys state that before the Gambling Control Commission can consider releasing funds to the Tribal Council, the BIA must recognize the Council as the Tribe s government. MPA at. The Burleys claim the BIA s June, letter set a July, deadline for the BIA to act on the Tribal Council s Recognition Request, but the letter did no such thing it merely asked the Burleys to submit comments by that date. ECF No., Exhibit. July has come and gone, and the BIA has not acted on the Recognition Request or set a timetable for action. Nor is the BIA certain to approve the Recognition Request when it does act, as the Burleys assume (see MPA at ). The BIA will not recognize a Tribal government until it is satisfied that the Tribe s representatives, with whom [it] must conduct government-to-government relations, are valid representatives of the [Tribe] as a whole. Miwok II, F.d at (quotation marks and citation omitted; italics in original). Even if the Regional Director approves the Recognition Request, her decision will be subject to appeal within the Department of the Interior only an approval by the Assistant Secretary would be final for the Department and effective immediately. C.F.R..(e),.(a), (e). An appeal would carry an automatic stay of the Regional Director s approval. See C.F.R..(b); Yakama Nation v. Northwest Regional Director Bureau of Indian Affairs, IBIA, (0). Even after any appeal is decided, the Commission still must decide whether to release the funds while litigation over the Tribe s government is pending. --

20 Case :-cv-0-wbs-ckd Document Filed 0/0/ Page of See generally California Valley Miwok Tribe v. California Gambling Control Comm'n, Cal. App. th (), review denied (Mar., ) (Miwok IV). Thus, the Burleys request is both premature and unnecessary.. Release of the funds would not cause irreparable harm. The Burleys fail to explain how releasing Tribal funds to the Tribal Council would cause them any harm let alone irreparable injury. The funds the Gambling Control Commission holds in trust for the Tribe belong to the Tribe itself, not the Burleys. See Miwok IV, Cal. App. th at -. The Burleys do not represent the Tribe, and the fact that the BIA dealt with the Burleys prior to 0 does not give them any claim on the funds. Id. (denying Burleys attempt to force the Commission to pay the Tribe s funds to them). Thus, the Burleys have no legal interest in the funds that could be injured by release of the funds to the Tribe or the Tribal Council. Even if the Burleys could assert the Tribe s interest in the funds (they can t), they have not explained how the Tribe s interests would be harmed by release of the funds to a Tribal government recognized as legitimate by the United States, or how any claimed injury would be irreparable i.e., not compensable by money damages. Monetary injury generally does not constitute irreparable injury. A Woman's Friend Pregnancy Res. Clinic v. Harris, F.Supp.d, *0 (E.D. Cal. ) (citing LA Mem'l Coliseum Comm'n v. Nat'l Football League, F.d, (th Cir. 0)). And the Burleys have not even attempted to show that the Tribe would be unable to recover if the Gambling Control Commission erroneously released Tribal funds. See Miwok IV, Cal.App.th at 0 (Commission, as a trustee of Tribal funds, would be liable under state law if it paid the funds to an unauthorized recipient). C. The balance of equities favors Intervenors. The Burleys breezily dismiss the balancing of equities, claiming none of the parties or any other person will be harmed by a stay because the Gambling Control Commission will continue to hold the accrued funds that belong to the Tribe. MPA at -. They ignore the ongoing harm A Woman s Friend recognizes an exception where later monetary recovery might be precluded by state sovereign immunity, but that exception does not apply here. F.Supp.d at *0. --

21 Case :-cv-0-wbs-ckd Document Filed 0/0/ Page of to the Tribe and its members from the lack of a government-to-government relationship with the United States, and the resulting lack of access to federal and state funding for essential services and assistance to Tribal members including health care, legal assistance, and economic development programs. Decl. of V. WhiteBear,. See Goodface v. Grassrope, 0 F.d, (th Cir. ) (BIA s failure to recognize either of two tribal factions created a hiatus in tribal government which jeopardized the continuation of necessary day-to-day services on the reservation ). In contrast, there will be no harm to the Burleys if the Court denies a stay. As explained above, the Burleys have no interest in the funds held in trust for the Tribe, and the possible recognition of the Tribal Council would not harm the Burleys given that they have not been recognized as the Tribe s government in more than years. D. An injunction is not in the public interest. The Burleys also ignore the public interest factor, claiming (without explanation) it is not implicated because the case affects an Indian tribe and its members. MPA at. But there is a strong public interest in avoiding unnecessary intrusion in tribal self-governance and allowing federally recognized tribes to exercise their sovereignty. Aguayo, supra, No. -0, slip op. at. Likewise, the United States has a strong interest, in light of its unique trust obligation to Indian tribes, in promoting majoritarian values. Miwok II, F.d at (citations omitted). Further delaying recognition of a Tribal government that reflects the will of the entire Tribal community, as required by the Decision, would not serve those interests. See id. E. The Burleys requested relief is overbroad Even if the Burleys were entitled to injunctive relief which they have failed to show their attempt to prevent the BIA from considering and acting on the Tribal Council s Recognition Request still would be overbroad and ill-tailored to the harm they allege. See Skydive Arizona, To the extent the Burleys have an interest in participating in the Tribe, a decision recognizing the Tribal Council would not prejudice that interest. The Decision encourages the Burleys to participate in Tribal organization as part of the larger Tribal community, Decision at, but so far they have declined to do so. Recognition Request, Attachment, pp

22 Case :-cv-0-wbs-ckd Document Filed 0/0/ Page of supra, F.d at (injunction should be narrowly tailored). If the Burleys seek to prevent erroneous release of Tribal funds by the California Gambling Control Commission, the proper vehicle would be a suit for relief against the Commission something the Burleys are no stranger to if and when the Tribal Council seeks access to the funds. See Miwok IV, Cal. App. th. Halting the BIA s administrative process and imposing a freeze on this Tribe s relationship with the United States would be unnecessarily burdensome and improper. See Columbia Pictures Indus., supra, F.d at. F. The Assistant Secretary chose not to stay the Decision. The Burleys suggest this Court should stay the Decision [i]n the same way the [ Decision] was stayed pending resolution of the federal litigation in Miwok III. MPA at. But the district court did not stay the Decision the Assistant Secretary did, in the Decision itself. Corrales Decl., Exhibit, p.. See also Miwok III, F.Supp.d at ; C.F.R..(c) (decisions of the Assistant Secretary are final and effective immediately unless provide[d] otherwise in the decision ). The fact that the Assistant Secretary voluntarily stayed the Decision and chose not to stay the Decision argues against a court-imposed stay here, not in favor. V. CONCLUSION The Burleys attempt to enjoin the BIA from recognizing a Tribal government is premature, overbroad and would cause irreparable harm to the Tribe and its members. The Burleys have already crippled the Tribe s efforts at self-governance and its relationship with the United States for more than a decade. They should not be allowed to prevent the Tribe from restoring that relationship while they prosecute yet another groundless lawsuit. The Court should deny the motion for stay. --

23 Case :-cv-0-wbs-ckd Document Filed 0/0/ Page of Dated: August, ROBERT J. URAM JAMES F. RUSK SHEPPARD, MULLIN, RICHTER & HAMPTON LLP Attorneys for Intervenor-Defendants By /s/ James F. Rusk JAMES F. RUSK --

24 Case :-cv-0-wbs-ckd Document Filed 0/0/ Page of CERTIFICATE OF SERVICE I hereby certify that on August,, I electronically filed the foregoing Opposition to Plaintiffs Motion for an Order Staying AS-IA s December 0, Decision with the Clerk of the Court by using the CM/ECF system, and thus served the following counsel of record who are registered ECF users: Manuel Corrales, Jr. mannycorrales@yahoo.com Having obtained prior written consent, I served the following counsel for the named defendants by electronic mail: Jody H. Schwarz jody.schwarz@usdoj.gov Respectfully submitted, /s/ James F. Rusk JAMES F. RUSK SHEPPARD, MULLIN, RICHTER & HAMPTON LLP Attorneys for Intervenor-Defendants --