Case 3:16-cv LRH-WGC Document 119 Filed 06/01/17 Page 1 of 13

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1 Case :-cv-00-lrh-wgc Document Filed 0/0/ Page of 0 Rollie Wilson (Pro Hac Vice) Jeffrey S. Rasmussen (Pro Hac Vice) 00 Plaza Drive Louisville, CO 00 Phone: (0) -00 Facsimile: (0) - rwilson@ndnlaw.com jrasmussen@ndnlaw.com Scott R. Daniel, Esq. Nevada Bar No. 00 S. Virginia St., th Floor Reno, Nevada 0 Telephone:.. Facsimile:.0.0 scott.daniel@danielfirm.com Attorneys for Plaintiff IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA 0 BATTLE MOUNTAIN BAND OF THE TE-MOAK TRIBE OF WESTERN SHOSHONE INDIANS, v. Plaintiff, UNITED STATES BUREAU OF LAND MANAGEMENT and JILL C. SILVEY, in official capacity as Bureau of Land Management Elko District Manager, and Defendants. CARLIN RESOURCES, LLC Case No. :-cv-0-lrh-wgc REPLY IN SUPPORT OF MOTION TO DISMISS CROSSCLAIMS OF CARLIN RESOURCES LLC 00 S. Virginia Street, th Floor Reno, Nevada 0.. Defendant-Intervenor and Cross-Claimant. / COMES NOW, Plaintiff, the Battle Mountain Band of the Te-Moak Tribe of Western Shoshone Indians, (hereinafter the Band ), and files this reply in support of its motion to dismiss the --

2 Case :-cv-00-lrh-wgc Document Filed 0/0/ Page of S. Virginia Street, th Floor Reno, Nevada 0.. crossclaims of Carlin Resources, LLC s (hereinafter Carlin ), based upon Federal Rule of Civil Procedure (b)(), (b)() and (b)(). I. CARLIN S CROSSCLAIM MUST BE DISMISSED FOR FAILURE TO PLEAD OR ESTABLISH JURISDICTION. A. CARLIN S CROSSCLAIM MUST BE DISMISSED FOR FAILURE TO PLEAD JURISDICTION. In its opening brief, the Band provided an argument with a conclusion which plainly flows from two unassailable premises. Premise : Exhaustion of administrative remedies or an exception to exhaustion is a jurisdictional prerequisite which must be pled in a request for judicial review under the APA. Premise : Carlin failed to plead exhaustion or an exception to exhaustion. Conclusion: Carlin s defective complaint must be dismissed for failure to plead jurisdiction. Carlin did not dispute either premise, nor could it. Premise is a correct statement of law. A federal plaintiff is always required to plead jurisdictional facts, and this is particularly the case under the APA, because the APA defines the limitations on the scope of the United States waiver of sovereign immunity. A plaintiff is required to plead that it comes within the scope of that limited waiver. E.g., San Carlos Apache Tribe v. United States, F.d 0, 0 (th Cir. 00); Tosco Corp. v. Communities for a Better Env't,, F.d, (th Cir. 00). Premise is established by Carlin s own complaint, which indisputably does not contain the required allegations. Because it has no response to the Band s argument that Carlin s complaint is facially defective, Carlin attempts to get the Court to skip over that preliminary issue and to consider whether Carlin could have pled sufficient facts. In its response, Carlin seeks to rely upon unpled allegations of fact to argue it did not have to exhaust administrative remedies; and it argues in the alternative that other unpled allegations show that it exhausted administrative remedies. Carlin is wrong on both counts The Band also notes that, in its typical over-aggressive manner, Carlin attacks the Band and its attorneys for what is, in fact, Carlin s erroneous failure to plead jurisdiction. Carlin asserts that the Band ignores facts regarding Carlin s alleged attempt to exhaust administrative remedies and ignores Carlin s assertion that it does not have to exhaust administrative remedies. The Band did --

3 Case :-cv-00-lrh-wgc Document Filed 0/0/ Page of 0 0 (as discussed in sections B and C, infra), but the threshold issue, the only one the Court needs to reach, is whether Carlin s crossclaim compliant is facially defective because Carlin failed to plead the required elements. As Carlin also does not contest that it is required to exhaust administrative remedies, the complaint is facially defective and therefore must be dismissed. B. AS CARLIN PREVIOUSLY ACKNOWLEDGED TO THIS COURT, CARLIN IS REQUIRED TO EXHAUST ADMINISTRATIVE REMEDIES. Contrary to its prior statements of law to this Court in this very case, Dkt. at -, Carlin now claims that it was not required to exhaust administrative remedies because, it claims, it had discretion to either file or not file an intra-agency appeal of the Bureau of Land Management s (hereinafter BLM ) decision. Even if this Court did reach the issue (which it should not, because the complaint is facially defective), Carlin s claim that it was not required to exhaust administrative remedies must be rejected for a variety of independent reasons. First, and simplest, even if Carlin had discretion (which it did not), it already exercised that discretion. It filed an administrative appeal and further informed this Court that it would exhaust that remedy. The procedural fact, established law of the case, is that Carlin filed its administrative appeal prematurely, but that does not alter the fact that Carlin already chose its procedural path. Second, attempting to defeat its own prior legal analysis, Carlin now asserts that its administrative appeal would be properly brought under C.F.R.., which it then incorrectly asserts does not require exhaustion of administrative appeals. In relevant part, C.F.R..(c) states: 00 S. Virginia Street, th Floor Reno, Nevada 0.. not ignore anything. Instead, all of these facts that Carlin now alleges the Band ignores were simply not in the complaint. And as the Band also has discussed, it was Carlin itself, in its own prior Court filing that affirmatively asserted that it had to, and would, exhaust administrative remedies before it brought a claim to this Court. The Band is not required to investigate whether Carlin could have pled a basis for jurisdiction. Instead the Band can, and has, attacked the pleading on its face (and if it were to survive that challenge, then on the facts). The pleading is facially defective, but Carlin has chosen to dig in instead of seeing if it could plead a basis for jurisdiction, and its defective complaint must be dismissed. --

4 Case :-cv-00-lrh-wgc Document Filed 0/0/ Page of S. Virginia Street, th Floor Reno, Nevada 0.. No decision which at the time of its rendition is subject to appeal to the Director or the Appeals Board shall be considered final so as to be agency action subject to judicial review under U.S.C. 0, unless a petition for stay of decision has been timely filed and the decision being appealed has been made effective in the manner provided in paragraphs (a)() or (b)() of this section or a decision has been made effective pending appeal... Paragraph (a)(), referenced in the above-cited language, states that a decision for which a stay is not granted will become effective immediately after the Director or an Appeals Board denies or partially denies the [timely] petition for a stay, or fails to act on the petition within the time specified Paragraph (b)() states that the Director or an Appeals Board shall grant or deny a petition for a stay pending appeal, in whole or in part within calendar days of the expiration of the time for filing a notice of appeal. Therefore, contrary to Carlin s assertion that C.F.R.. does not require intra-agency exhaustion before seeking judicial review of an agency s decision, C.F.R.. explicitly requires that the agency s decision be made effective via the Director of Appeals Board s denial or failure to rule upon a timely petition for stay of the decision pending appeal before the matter can be rendered a final agency action subject to judicial review. Third, Carlin s argument is further dependent on misquoting the regulations. Carlin begins its discussion with the uncontroversial premise that use of the word may in a statute can confer or denote discretion. But in an attempt to then fit this matter within that premise, Carlin then misquotes C.F.R. 0.0 as using the potentially discretionary term may. Resp. Br. at. The regulation simply does not contain the pivotal word that Carlin avers is in the regulation. The Carlin also asserts that this discretionary language appears in the statute at issue. Resp. Br. At. The Band is at a loss to respond to that assertion because Carlin does not cite to this vaguely referenced statute at issue. Carlin cites to C.F.R. 0.0, but a C.F.R. section is not a statute. The only statute outside of the APA that Carlin does cite is U.S.C. 00, which has absolutely nothing to do with this matter and does not support the assertion for which Carlin cites it. U.S.C. 00 provides the legal standard an agency is required to apply to determine whether it should withhold information on the location of a historic site. While the agency did invoke U.S.C. 00 in this matter to preclude disclosure of location-identifying information regarding the historic site, Carlin does not appear to be challenging that decision. --

5 Case :-cv-00-lrh-wgc Document Filed 0/0/ Page of S. Virginia Street, th Floor Reno, Nevada 0.. regulation states in whole: All decisions under this subpart go into effect immediately and remain in effect while appeals are pending before OHA unless OHA grants a stay under.(b) of this title. Additionally, even if the regulation had used the word may, that would not be sufficient in the current matter. The term may, as used in regulations does not diminish express prerequisites for what constitutes final agency action i.e. the threshold test for justiciability of an agency action pursuant to U.S.C. 0 set forth under C.F.R..(c). E.g., Young v. Reno, F.d, (th Cir. ). Finally, Carlin argues that it filed a timely motion for a stay and that the IBLA denied that motion. It did not file the requisite motion for stay of the agency action (as discussed below), and any request that it did file was not timely because the appeal was not timely. The appeal, and any request for stay were premature (as discussed below), and therefore not timely. Carlin was correct in its prior brief. Carlin was required to exhaust administrative remedies C. CARLIN FAILED TO EXHAUST ADMINISTRATIVE REMEDIES. Carlin now argues that it exhausted administrative remedies by filing, and having the IBLA dismiss, a premature appeal of a non-final agency action. That would be akin to a party having a premature appeal in the Ninth Circuit dismissed, and then filing a petition for writ of certiorari with the United States Supreme Court on the substantive issues it had attempted to raise in the premature circuit court appeal. This argument is without merit. E.g., Coopers & Lybrand v. Livesay, U.S., (). To hold that the IBLA s dismissal of a premature appeal gives rise to Carlin s right to seek judicial review would undermine the very purposes of the administrative exhaustion requirement, which are to prevent premature interference with agency processes, so that the agency may function efficiently and so that it may have an opportunity to correct its own errors, as well as to afford the parties and the courts the benefit of its experience and expertise, and to compile a record which is --

6 Case :-cv-00-lrh-wgc Document Filed 0/0/ Page of S. Virginia Street, th Floor Reno, Nevada 0.. adequate for judicial review. Weinberger v. Salfi, U.S., (). If Carlin is permitted to file this matter in federal court at this time, then any plaintiff could circumvent administrative exhaustion requirements simply by filing a premature challenge to any speculative agency action, depriving the agency of the opportunity to employ its internal processes and expertise in order to either resolve these issues altogether or compile an adequate record for judicial review. Carlin also argues that it satisfied its exhaustion requirements when the IBLA denied Carlin s request for stay of the BLM s decision. But as noted above, the law of the case is that there was no final BLM decision to stay. Additionally, Carlin has not attached any request for stay to its Opposition Brief so again it leaves the parties and the Court to guess at what it is asserting. The only insight as to the existence or content of this request for stay is found in Exhibit of Carlin s Opposition Brief, which is the IBLA s decision dismissing Carlin s appeal and request for stay. There, the IBLA indicates only that Carlin has filed a motion to hold its appeal in abeyance until the Ninth Circuit Court of Appeals issues its ruling in Battle Mountain Band of the Te-Moak Tribe of Western Shoshone Indians v. U.S. Bureau of Land Management. Resp. Br. At Ex., p.. C.F.R.. requires disposition of a request for stay of the agency s decision pending appeal, not a request for stay of the appeal itself pending the decision of a separate matter. Moreover, although Carlin has failed to establish a record that it requested a stay of the agency decision, even if Carlin had requested a stay of the agency s decision, the fact remains that there was no actual decision for the agency to stay. That is the law of the case, and it is undisputed by Carlin. Thus, any denial of Carlin s alleged request for stay logically could not have rendered the alleged decision effective, as is required to constitute final agency action under C.F.R... II. THE BAND IS A NECESSARY, INDISPENSABLE, AND UNJOINABLE PARTY In its motion to dismiss, the Band showed that it was a necessary, indispensable, unjoinable party to Carlin s crossclaims. As the Band showed, Carlin s own prior factual and legal arguments to --

7 Case :-cv-00-lrh-wgc Document Filed 0/0/ Page of 0 0 this Court, originally filed as counterclaims against the Band, illustrated the Band s very substantial interest in Carlin s crossclaims. In fact, Carlin previously asserted that the Band was the only necessary party to its claim, and Carlin emphatically noted that its purpose was to get a court order which would prevent the Band from challenging Carlin s destruction of the Traditional Cultural Properties (TCPs) at issue. Carlin makes only a pro forma response to the Band s argument that the Band is a necessary and indispensable party. Carlin s argument on that issue requires no further response. Carlin s primary arguments assume correctly that the Band is a necessary party, but Carlin argues the case can proceed because: A) the Band waived sovereign immunity by filing its complaint, or B) Carlin s claims come within the public rights exception. Both arguments lack merit. A. THE BAND HAS NOT WAIVED SOVEREIGN IMMUNITY TO CARLIN S CROSSCLAIMS. In its opening brief, the Band thoroughly briefed that the Band has sovereign immunity from claims which are outside the scope of the Band s complaint. Carlin wisely does not contest that argument. But then, directly contradicting other parts of its response brief in which Carlin asserts that the Band is not a necessary party, Carlin makes a conclusory assertion that its crossclaims raise matters that are identical to matters necessary to resolve the BMB s complaint. Resp. Br. at. The Band, of course, understands that it has waived sovereign immunity to arguments that BLM will make in defense. But as Carlin admits, the litigation exception to sovereign immunity is limited to matters necessary to resolve the BMB s initial complaint. Carlin Resp. at (emphasis added). Recognizing this limitation on the scope of the Band s waiver, Carlin implausibly asserts that to decide the Band s claims, this Court would need to determine whether the action taken by BLM on April, 0 is valid. But the Band is not disputing BLM s April, 0 action. BLM issued its decision, and the Band is not, in the current suit, challenging BLM s decision. 00 S. Virginia Street, th Floor Reno, Nevada

8 Case :-cv-00-lrh-wgc Document Filed 0/0/ Page of S. Virginia Street, th Floor Reno, Nevada 0.. In fact, the reason Carlin brought this challenge to BLM s April, 0 decision is precisely because that claim was not within the scope of the Band s claims. If it were within the scope, there would have been no reason to assert it as a counterclaim or crossclaim. In fact, Carlin is seeking to go far beyond the scope of the Band s claims and therefore the Band s waiver of sovereign immunity. Carlin is challenging here the BLM s base authority under the National Historic Preservation Act to determine that seven TCPs in the area of the mine are eligible for the National Register of Historic Places. While a single TCP underlying a power line built by Carlin is involved here, it is not the focus of this case. The Band has not waived its sovereign immunity to being made a defendant in an action challenging BLM s decision. B. THE PUBLIC RIGHTS EXCEPTION DOES NOT APPLY TO CARLIN S PRIVATE INTERESTS Carlin argues that, even if the Band is a necessary party pursuant to Federal Rule of Civil Procedure, the public rights exception to compulsory joinder applies to the present matter. As Carlin notes in its Opposition Brief, this public rights exception applies only where the following conditions are met: () the litigation must transcend the private interests of the litigants and seek to vindicate a public right and () although the litigation may adversely affect the parties interests, the litigation must not destroy the legal entitlements of the absent parties. Kescoli v. Babbit, 0 F.d 0, (thcir. ) (internal citations omitted). Carlin seeks to interpret the exception to swallow up the rule. It argues (using its standard hyperbolic phrasing) that the exception applies here because members of the public, such as applicants for federal permits under C.F.R. 00. (c), have a right under NHPA, to be consulted prior to an agency taking action that would devastate previously-approved undertakings on properties eligible for or listed on the National Register of Historic Places. Resp. Br. at. Carlin further argues that the public has the utmost interest in the federal court system deterring the BLM s blatant violations of the NHPA and its own PA and that permitting the BLM to circumvent the procedures --

9 Case :-cv-00-lrh-wgc Document Filed 0/0/ Page of S. Virginia Street, th Floor Reno, Nevada 0.. required by the APA and NHPA involving consultation with parties who may be adversely affected by designation of TCPs runs contrary to the legislature s efforts to involve the public in federal environmental decisions. Id. There is no merit to Carlin s invocation of the public rights exception to Rule because the litigation does not transcend the private interests of the litigants. Kescoli, 0 F.d at. In Kescoli, the Ninth Circuit found that a Navajo Nation tribal member s challenge to a settlement agreement among a coal company, the Office of Surface Mining, the Navajo Nation, and the Hopi Tribe on the basis of the parties failure to adequately provide for the protection of sacred burial sites did not fit within the public rights exception. Id. The court reasoned that the plaintiff s claim was a private one focused on the merits of her dispute rather than on vindicating a larger public interest. Id. Despite the fact that the plaintiff purport[ed] to represent others who believe the burial sites should receive maximum protection, the court concluded that the plaintiff s claim was essentially private in nature, limited to a disagreement over the appropriate direction of the Navajo Nation and the Hopi Tribe. Id. Analogous to the plaintiff in Kescoli, even though Carlin purports to be advocating on behalf of a larger public interest, the substance of its claim is private in nature and grounded in BLM s alleged procedural violations based upon alleged misinterpretation of a Programmatic Agreement specific to Carlin. Therefore, it is the private interests of the litigants not the public at large which comprises the essence of Carlin s crossclaims. In addition, the public rights exception does not apply here because the litigation could destroy the legal entitlement of the absent parties. Id. In White v. University of California, F.d 00 (th Cir. 0), the Ninth Circuit confronted the issue of whether a tribe claiming a right to repatriate human remains that had been kept at the University was an indispensable party to a lawsuit between the University and a group of scientists over the disposition of the remains. In the underlying --

10 Case :-cv-00-lrh-wgc Document Filed 0/0/ Page 0 of S. Virginia Street, th Floor Reno, Nevada 0.. lawsuit, the Scientists sought mandamus relief against the University on the basis that the University had violated the Native American Graves Protection and Repatriation Act (hereinafter NAGPRA ) by failing to make a formal and adequate filing that the remains were Native American within the meaning of the NAGPRA before transferring the remains to the La Posta Band of Diegueno Mission Indians. White at 0-. The Ninth Circuit found that the tribes were indispensable parties under Rule and that the public rights exception did not apply because the rights of the Tribes and the Repatriation Committee will be extinguished if the Plaintiffs prevail in their claims. Id. at 0. Like the tribes in White, the Band in the present matter asserts a right that will be extinguished if Carlin prevails on its crossclaim. Namely, if Carlin prevails, the Band will be unable to protect certain TCPs it would otherwise have a right to protect pursuant to the NHPA. Therefore, the public rights exception does not apply. Finally, Carlin makes the all-too-common invalid argument which asks the Court to put the cart before the horse in the Court s Rule analysis. It argues that the Band cannot have a valid interest in TCPs which the BLM improperly designated. The validity of the Band s interest is a determination on the merits and, therefore, should play no role in the application of Rule. To the contrary, the Court is to base its decision on the Band s claimed interests, and those claimed interests must be weighed and the necessity or indispensability of absent persons determined prior to any consideration of the merits of a case. Tankersley v. Albright, F.d, - (th Cir. ). See also, Hunter v. Philip Morris USA F.d 0, 0- (th Cir. 00) (finding that a party s challenge to the joinder of an in-state party in order to avoid diversity jurisdiction must be based on grounds separate from the merits of the plaintiff s case). Accordingly, the effect that the alleged improper designation of the TCPs has on the validity of the Band s interest is immaterial for the purpose of applying Rule. In its opening brief, the Band also argued, primarily through incorporation of arguments by the -0-

11 Case :-cv-00-lrh-wgc Document Filed 0/0/ Page of 0 0 CONCLUSION For the reasons stated herein, Carlin continues to fall short in demonstrating that it has pled or satisfied the administrative exhaustion requirements necessary to render the BLM s alleged decision a final agency action under U.S.C. 0. Furthermore, Carlin has not shown that the relief requested in its crossclaims comes within the Band s limited waiver of sovereign immunity and it cannot meet the requirements for applying the public rights exception to Federal Rule of Civil Procedure. Therefore, Carlin has not met its burden of pleading and proving that it has overcome the Court s presumed lack of subject matter jurisdiction over Carlin s crossclaims. Stock West, Inc. v. Confederated Tribes of the Colville Reservation, F.d, (th Cir. ). Respectfully submitted this st day of June, 0. FREDERICKS PEEBLES & MORGAN, LLP /s/ Jeffrey S. Rasmussen Jeffrey S. Rasmussen (Pro Hac Vice) 00 Plaza Drive Louisville, CO 00 Phone: (0) -00 Facsimile: (0) - jrasmussen@ndnlaw.com FREDERICKS PEEBLES & MORGAN, LLP /s/ Rollie Wilson Rollie Wilson (Pro Hac Vice) 0 th Street, N.W. Washington, DC 000 Phone: (0) 0- Facsimile: (0) rwilson@ndnlaw.com 00 S. Virginia Street, th Floor Reno, Nevada 0.. United States, that Carlin lacks standing for the claim pled. Carlin reasonably chose to respond to that argument only in its response to the United States. The Band will rely on the United States to reply to Carlin s response to the United States argument. The Band s position remains that Carlin lacks standing. --

12 Case :-cv-00-lrh-wgc Document Filed 0/0/ Page of /s/ Scott R. Daniel Scott R. Daniel, NV Bar 00 South Virginia Street, th Floor Reno, NV 0 Phone: () - Facsimile: () scott.daniel@danielfirm.com Counsel for Plaintiff S. Virginia Street, th Floor Reno, Nevada

13 Case :-cv-00-lrh-wgc Document Filed 0/0/ Page of CERTIFICATE OF SERVICE I hereby certify that on the st day of June, 0, I electronically filed the foregoing REPLY IN SUPPORT OF MOTION TO DISMISS CROSSCLAIMS OF CARLIN RESOURCES LLC with the Clerk of the Court and served on all parties of record using the CM/ECF System. /s/ Ashley Klinglesmith S. Virginia Street, th Floor Reno, Nevada