Case 2:17-cv SVW-AFM Document 28-1 Filed 10/13/17 Page 1 of 21 Page ID #:362

Transcription

1 Case :-cv-0-svw-afm Document - Filed 0// Page of Page ID #: 0 0 JEFFREY H. WOOD Acting Assistant Attorney General REBECCA M. ROSS, Trial Attorney (AZ Bar No. 00) rebecca.ross@usdoj.gov DEDRA S. CURTEMAN, Trial Attorney (IL Bar No. ) dedra.curteman@usdoj.gov Environment & Natural Resources Division United States Department of Justice P.O. Box, Washington, D.C. 00 Tel: (0) -; Fax: (0) 0-0 Attorneys for the United States IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA ANNE CRAWFORD-HALL et al., Plaintiffs, v. UNITED STATES OF AMERICA et al., Defendants. CASE NO. :-cv--svw UNITED STATES MEMORANDUM IN SUPPORT OF MOTION FOR PARTIAL DISMISSAL Honorable Stephen V. Wilson United States District Judge Pursuant to Fed. R. Civ. P. (b)() and (b)(), the United States of America et al. (collectively, United States ), respectfully submits this memorandum in support of the Motion for Partial Dismissal filed concurrently herewith.

2 Case :-cv-0-svw-afm Document - Filed 0// Page of Page ID #: 0 0 TABLE OF CONTENTS TABLE OF AUTHORITIES... ii INTRODUCTION... BACKGROUND... I. The Indian Reorganization Act... II. Carcieri v. Salazar... III. BIA s June 0 Decision... ARGUMENT... I. Standard of Review... II. Plaintiffs Second Claim for Relief Must be Dismissed... A. Administrative Exhaustion is Required to Invoke this Court s Subject Matter Jurisdiction... B. Plaintiffs Had Notice and the Opportunity to Administratively Appeal the June 0 Decision but Chose Not to Do So... i. Plaintiffs Had Notice of the June 0 Decision... ii. Plaintiffs Understood Where to File an Appeal... iii. Plaintiffs Understood the Onus was on Them to Appeal... C. That Plaintiff is Now Time-Barred from Pursuing an Administrative Appeal is Irrelevant and Does Not Negate the Exhaustion Requirement... 0 III. Plaintiffs Fifth Claim for Relief Must be Dismissed... A. Plaintiffs Lack Standing to Pursue Mandamus Relief... B. Plaintiffs Fifth Claim for Relief Fails to State a Claim Upon Which Relief Can be Granted... i. Section 0 Offers Plaintiffs No Relief... ii. The All Writs Act Offers Plaintiffs No Relief... CONCLUSION... i :-cv-0-svw

3 Case :-cv-0-svw-afm Document - Filed 0// Page of Page ID #: 0 0 Federal Cases TABLE OF AUTHORITIES 'Ilio'ulaokalani Coalition v. Rumsfeld, F.d 0 (th Cir. 00)... Amerco v. Nat l Labor Relations Bd., F.d (th Cir. 00)... Ashcroft v. Iqbal, U.S. (00)... B.A. Wackerli, Co. v. Volkswagen of Am., Inc., No. :-cv-00-blw, 0 U.S. Dist. LEXIS (D. Idaho Aug., 0)... Balistreri v. Pacifica Police Dep t, 0 F.d (th Cir. )... Bell Atl. Corp. v. Twombly, 0 U.S. (00)... Carcieri v. Salazar, U.S. (00)..., Cheney v. United States Dist. Court, U.S. (00)... Clapper v. Amnesty Int l USA, S. Ct. (0)... Clinton v. Goldsmith, U.S. ()... Colwell v. Dep t of Health and Human Servs., F.d (th Cir. 00)... Darby v. Cisneros, 0 U.S. ()..., Edison v. United States, F.d 0 (th Cir. 0)... Faras v. Hodel, F.d 0 (th Cir. )... Freeney v. Bank of Am. Corp., No. CASE NO. CV -0 MMM (PJWx), 0 U.S. Dist. LEXIS (C.D. Cal. Nov., 0)... Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., U.S. (000)... Great Basin Mine Watch v. Hankins, F.d (th Cir. 00)... Hawaii v. Office of Hawaiian Affairs, U.S. (00)... Humane Soc y of the United States v. Gutierrez, F.d (th Cir. 00)... Joint Bd. of Control of Flathead, Mission & Jocko Irr. Dists. v. United States, F.d (th Cir. )... Kokkonen v. Guardian Life Ins. Co. of Am., U.S. ()... Laing v. Ashcroft, 0 F.d (th Cir. 00)... Leite v. Crane Co., F.d (th Cir. 0)... Lights of Am., Inc. v. United States Dist. Court, 0 F.d (th Cir. ).. ii :-cv-0-svw

4 Case :-cv-0-svw-afm Document - Filed 0// Page of Page ID #: 0 0 Lujan v. Defs. of Wildlife, 0 U.S. ()... Lujan v. Nat l Wildlife Fed n, U.S. (0)... Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, U.S. 0 (0)... McCarthy v. Madigan, 0 U.S. 0 ()..., Middleton v. Santa Barbara Police Dep t, No. NO. CV -0-SVW (AGR), 0 U.S. Dist. LEXIS 0 (C.D. Cal. July, 0)... Miller v. French, 0 U.S. (000)... New Gen, L.L.C. v. Safe Cig, L.L.C., 0 F.d 0 (th Cir. 0)... Norton v. Southern Utah Wilderness All., U.S. (00)... Perez v. United States, No. CV --SVW (JEM), 0 U.S. Dist. LEXIS 0 (C.D. Cal. Nov., 0)... Rattlesnake Coalition v. U.S. Envtl. Prot. Agency, 0 F.d 0 (th Cir. 00)..., Robinson v. Salazar, F. Supp. d 00 (E.D. Cal. 0)... Robinson v. United States, F.d (th Cir. 00)... Safe Air For Everyone v. Meyer, F.d 0 (th Cir. 00)... Sapp v. Kimbrell, F.d (th Cir. 00)... Stock West Corp. v. Lujan, F.d (th Cir. )..., 0 United States v. Denedo, U.S. 0 (00)... United States v. Testan, U.S. ()... Warth v. Seldin, U.S. 0 ()... White Mountain Apache Tribe v. Hodel, 0 F.d (th Cir. )..., Woodford v. Ngo, U.S. (00)..., Young v. Reno, F.d (th Cir. )... Federal Statutes Administrative Procedure Act, U.S.C U.S.C U.S.C U.S.C. 0...,,, iii :-cv-0-svw

5 Case :-cv-0-svw-afm Document - Filed 0// Page of Page ID #: 0 U.S.C. 0()... Indians, U.S.C U.S.C U.S.C U.S.C. 0..., U.S.C U.S.C.... U.S.C. (a)..., Federal Regulations Indians, C.F.R..(c)()(iii)...,, Federal Rules Fed. R. Civ. P. (b)()... Fed. R. Civ. P. (b)()..., Fed. R. Civ. P.... Constitutional Provisions U.S. Const. art. III..., Other Authorities Attorney General s Manual ()... 0 iv :-cv-0-svw

6 Case :-cv-0-svw-afm Document - Filed 0// Page of Page ID #: 0 0 INTRODUCTION Plaintiffs Anne Crawford-Hall et al. challenge, pursuant to the Administrative Procedure Act, U.S.C. 0-0 ( APA ), a December, 0 decision issued by United States Department of the Interior ( Interior ) through the Bureau of Indian Affairs ( BIA ), as well as the January, 0 decision issued by former Principal Deputy Assistant Secretary Indian Affairs Lawrence Roberts affirming the BIA s decision on appeal. Together, these two decisions constitute Interior s final decision to acquire approximately,00 acres of land ( Property ) in trust for the Santa Ynez Band of Chumash Mission Indians ( Tribe ). The United States hereby moves to dismiss Plaintiffs Second and Fifth Claims for Relief for lack of subject matter jurisdiction, lack of standing, and failure to state a claim upon which relief can be granted. Plaintiffs Second Claim for Relief seeks a declaration that the Secretary of the Interior ( Secretary ) lacks authority under the Indian Reorganization Act, U.S.C. 0 et seq. ( IRA ), to acquire land in trust for the Tribe. In seeking this relief, Plaintiffs indirectly challenge an earlier BIA decision, issued in June 0 ( June 0 Decision ), that specifically evaluated whether, and ultimately concluded that, the Secretary possessed the requisite IRA authority, consistent with Carcieri v. Salazar, U.S. (00), to acquire land in trust for the Tribe. Plaintiff Crawford-Hall and the business interests she represents had notice of the The United States is also filing, concurrently herewith, a Partial Answer responding to Plaintiffs First, Third, and Fourth Claims for Relief. Plaintiff Crawford-Hall has been the sole manager of Plaintiffs San Lucas Ranch, LLC and Holy Cow Performance Horses, LLC since at least 00. See United States Request for Judicial Notice (hereinafter, RJN ) filed concurrently herewith, at Ex. A (California Secretary of State Business Search Results). To the extent her businesses had any interest in challenging the June 0 Decision, Plaintiff Crawford-Hall, as sole manager and authorized representative, Compl., was obligated to administratively appeal the June 0 Decision to protect that interest. Plaintiffs failure to do so then precludes judicial review now. -- :-cv-0-svw

7 Case :-cv-0-svw-afm Document - Filed 0// Page of Page ID #: 0 0 June 0 Decision when it was issued and were informed that they had to file an administrative appeal within thirty days to challenge it. Despite this, Plaintiffs chose to forego filing such appeal. Administrative exhaustion is a prerequisite to invoking this Court s subject matter jurisdiction. Plaintiffs failure to exhaust is fatal to their Second Claim for Relief. Plaintiffs Fifth Claim for Relief objects to Interior s acceptance of title to the Property, which the agency was required to do under Interior regulations codified at C.F.R..(c)()(iii). Plaintiffs seek mandamus, asking this Court to compel Interior to upend the status quo and convey the Property back to the Tribe while this suit is pending. Even if Plaintiffs had standing to bring this claim, which they do not, Plaintiffs fail to satisfy the standard for mandamus relief, which requires that Interior have a statutory or regulatory duty to convey the Property out of trust during the pendency of this suit. Plaintiffs cannot identify any such duty, as none exists. Moreover, the trust status of the Property does not affect this Court s jurisdiction to grant any appropriate relief at the proper time. Accordingly, Plaintiffs Fifth Claim for Relief must also be dismissed. BACKGROUND I. The Indian Reorganization Act The IRA authorizes the Secretary to acquire land in trust for Indians. U.S.C. 0. The IRA defines Indian in three distinct ways: The term Indian... shall include [] all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction, and [] all persons who are descendants of such members who were, on June,, residing within the present boundaries of any Indian reservation, and [] shall further include all other persons of one-half or more Indian blood. U.S.C. (bracketed numbers and emphasis added). -- :-cv-0-svw

8 Case :-cv-0-svw-afm Document - Filed 0// Page of Page ID #: 0 0 II. Carcieri v. Salazar In Carcieri, the Supreme Court held that the word now in the phrase now under Federal jurisdiction in the IRA s first definition of Indian, meant, such that the phrase unambiguously refers to those tribes that were under federal jurisdiction when the IRA was enacted in. U.S. at. The Court majority did not, however, address the meaning of under Federal jurisdiction. Id. at -. Following the Carcieri decision, guided in part by Justice Breyer s concurring opinion in Carcieri, id. at -00, Interior interpreted the phrase and developed a two-part test for the agency s consideration when considering whether a particular Indian tribe was under federal jurisdiction in. III. BIA s June 0 Decision The BIA s June 0 Decision was exclusively focused on the question of whether Carcieri v. Salazar, U.S. (00), or Hawaii v. Office of Hawaiian Affairs, U.S. (00), limited the Secretary s IRA authority to acquire land in trust for the Tribe. See RJN Ex. B. The June 0 Decision, which applied the two-part test described above, is Interior s final decision that neither Carcieri nor Hawaii limited the Secretary s authority in this regard. Id. BIA provided notice of, and correct appeal instructions in, the June 0 Decision when issued. RJN Ex. B. at ; see also No More Slots et al. v. Pac. Reg l Dir., IBIA, (Mar., 0) (copy provided at RJN Ex. C). Despite this, no party filed a timely administrative appeal of the June 0 Decision. No More Slots, IBIA at, -. The June 0 Decision accordingly became final for the agency, not subject to further administrative review, and resolved the issue of the Secretary s IRA authority for any future decisions to acquire land in trust for the Tribe, including the decisions Plaintiffs challenge in this suit. -- :-cv-0-svw

9 Case :-cv-0-svw-afm Document - Filed 0// Page of Page ID #:0 0 0 ARGUMENT I. Standard of Review Federal Courts are courts of limited jurisdiction... possessing only that power authorized by Constitution and statute. Kokkonen v. Guardian Life Ins. Co. of Am., U.S., (). Once a court s subject matter jurisdiction is challenged, the party asserting subject matter jurisdiction has the burden of proving its existence. Robinson v. United States, F.d, (th Cir. 00) (quoting Rattlesnake Coalition v. U.S. Envtl. Prot. Agency, 0 F.d 0, 0 n. (th Cir. 00)). A motion to dismiss for lack of jurisdiction may constitute either a facial or factual attack. Edison v. United States, F.d 0, (th Cir. 0). While a facial attack asserts that the allegations in a complaint are insufficient to establish the court s jurisdiction, id., a factual attack contests the truth of the plaintiff s factual allegations, usually by introducing evidence outside the pleadings, New Gen, LLC v. Safe Cig, LLC, 0 F.d 0, (th Cir. 0) (quoting Leite v. Crane Co., F.d, (th Cir. 0) (emphasis in original). The court may consider such evidence without converting the motion into a summary judgment motion under Fed. R. Civ. P.. Safe Air for Everyone v. Meyer, F.d 0, 0 (th Cir. 00). Given Plaintiffs failure to exhaust administrative remedies, the United States disputes that there was final agency action, Compl. -, with regard to the Second Claim for Relief. When responding to a factual attack, Plaintiffs must present affidavits or any other evidence necessary to satisfy [their] burden of establishing that the court, in fact, possesses subject matter jurisdiction. Edison, F.d at (quoting Colwell v. Dep t of Health & Human Servs., F.d, (th Cir. 00) (brackets in original)). In this context, the court need not presume the truthfulness of the plaintiffs allegations. Id. (quoting White v. Lee, F.d, (th Cir. 000)). -- :-cv-0-svw

10 Case :-cv-0-svw-afm Document - Filed 0// Page 0 of Page ID #: 0 0 The United States also seeks dismissal pursuant to Fed. R. Civ. P. (b)(), which is proper when the complaint lack[s] a cognizable legal theory, or there is an absence of sufficient facts alleged under a cognizable legal theory. Freeney v. Bank of Am. Corp., 0 U.S. Dist. LEXIS, * (C.D. Cal. Nov., 0) (citing Balistreri v. Pacifica Police Dep t, 0 F.d, (th Cir. )). While courts, when considering dismissal under Rule (b)(), must accept all factual allegations in the complaint as true, the same cannot be said for unreasonable inferences or legal conclusions cast in the form of factual allegations. Id. at * (quoting Bell Atlantic Corp. v. Twombly, 0 U.S., (00)). A complaint must plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. (quoting Ashcroft v. Iqbal, U.S., (00)). II. Plaintiffs Second Claim for Relief Must be Dismissed A. Administrative Exhaustion is Required to Invoke this Court s Subject Matter Jurisdiction Absent an express statutory waiver of sovereign immunity, the United States cannot be sued. United States v. Testan, U.S., (); Rattlesnake Coalition, 0 F.d at 0. Plaintiffs identify Section 0 of the APA as the waiver of United States sovereign immunity, Compl., but Section 0 only waives immunity for final agency actions. Lujan v. Nat l Wildlife Fed n, U.S., (0) (citing U.S.C. 0); Rattlesnake Coalition, 0 F.d at 0. Agency decisions are not final until and unless a plaintiff has exhausted all administrative remedies expressly prescribed by statute or agency rule. Darby v. Cisneros, 0 U.S., (); Great Basin Mine Watch v. Hankins, F.d, (th Cir. 00) ( The APA requires that plaintiffs exhaust administrative remedies before bringing suit in federal court. ). The Supreme Court has stressed that Section 0(c) [of the APA] explicitly requires exhaustion -- :-cv-0-svw

11 Case :-cv-0-svw-afm Document - Filed 0// Page of Page ID #: 0 0 of all intra-agency appeals mandated... by agency rule. Darby, 0 U.S. at (brackets added); Young v. Reno, F.d, (th Cir. ). As the Ninth Circuit Court of Appeals has consistently held, Interior regulations require a plaintiff to exhaust administrative remedies before seeking judicial review of BIA decisions. See, e.g., Stock West Corp. v. Lujan, F.d, (th Cir. ); Joint Bd. of Control of Flathead, Mission & Jocko Irr. Dists. v. United States, F.d, -0 (th Cir. ); Faras v. Hodel, F.d 0, 0 (th Cir. ); White Mountain Apache Tribe v. Hodel, 0 F.d, - (th Cir. ). Since, [Interior] regulations governing challenges to decisions of the [BIA] have required an administrative appeal from most BIA decisions before judicial review of such decisions can be obtained. Stock West Corp., F.d at. The Supreme Court and the Ninth Circuit have consistently affirmed the two main purposes exhaustion serves. Woodford v. Ngo, U.S., (00); Amerco v. N.L.R.B., F.d, (th Cir. 00). First, exhaustion is rooted in the deference owed to agencies which have the primary responsibility for the programs that Congress has charged them to administer. McCarthy v. Madigan, 0 U.S. 0, (); Robinson v. Salazar, F. Supp. d 00, 0 (E.D. Cal. 0), aff d sub nom Robinson v. Jewell, 0 F.d 0 (th Cir. 0), cert denied S. Ct. 00 (0). The exhaustion doctrine applies with particular force when the action under review involves [the] exercise of the agency s discretionary power or when the agency proceedings in question allow the agency to apply its special expertise. Madigan, 0 U.S. at ; see also Robinson, F. Supp. d at 0. Exhaustion also promotes judicial efficiency, by allowing claims to be resolved much more quickly and economically in proceedings before an agency than in litigation in federal court, by sometimes convinc[ing] the losing party not to pursue the matter in federal court, and in cases that do reach the federal courts, -- :-cv-0-svw

12 Case :-cv-0-svw-afm Document - Filed 0// Page of Page ID #: 0 0 by produc[ing] a useful record for subsequent judicial consideration. Sapp v. Kimbrell, F.d, (th Cir. 00). See also Madigan, 0 U.S. at ; Ilio ulaokalani Coalition v. Rumsfeld, F.d 0, 0-0 (th Cir. 00). Plaintiffs obligation to exhaust administrative remedies regarding the Secretary s IRA authority is not just a formality. It fulfills the dual purposes of exhaustion that both the Supreme Court and the Ninth Circuit have consistently recognized. When Congress enacted the IRA in, Congress charged the Secretary of the Interior with the responsibility to carry out several functions, including the acquisition of land for the benefit of Indian tribes. If Plaintiffs took issue with BIA s June 0 Decision which concluded that the Secretary possessed the requisite IRA authority to acquire land in trust for the Tribe Plaintiffs were obligated to administratively appeal that determination before bringing the matter to federal court. Having flouted this requirement, Plaintiffs Second Claim for Relief must be dismissed. B. Plaintiffs Had Notice and the Opportunity to Administratively Appeal the June 0 Decision but Chose Not to Do So As detailed below, when the BIA issued its June 0 Decision, Plaintiffs had notice of it and further understood that an administrative appeal needed to be timely filed in order to challenge it. Despite this, Plaintiffs chose to forego an administrative appeal, apparently leaving the task to others. However, no party timely appealed the June 0 Decision. Plaintiffs cannot now revive a claim they failed to pursue five years ago. See, e.g., U.S.C. 0 (authorizing Secretary to restore surplus lands to tribal ownership); id. 0 (authorizing Secretary to effectuate land exchanges for the benefit of Indians); id. 0 (authorizing Secretary to acquire land for the purpose of providing land for Indians ); id. 0 (authorizing Secretary to proclaim new Indian reservations). -- :-cv-0-svw

13 Case :-cv-0-svw-afm Document - Filed 0// Page of Page ID #: 0 0 i. Plaintiffs Had Notice of the June 0 Decision The BIA issued its June 0 Decision on June, 0. At that time, Plaintiff Crawford-Hall was the publisher of the Santa Ynez Valley Journal, a local publication dedicated to bringing the most complete information we can find on topics of interest to... the community. On June, 0, Plaintiff Crawford-Hall directed readers to a website where they could obtain a copy of the BIA s June 0 Decision: It is very important that you read the latest information here and on the P.O.L.O. website (polosyv.org) about what is happening with the potential.-acres parcel under fee-to-trust application. A ruling has been issued, finally after years of waiting, and will require response from citizens and the Board of Supervisors [of Santa Barbara County]. You have until Thursday, July. I will have more discussion of what is happening and how you can participate next week. Check it out, as it has profound implications for the future of our valley. RJN Ex. D at (emphasis added). When Plaintiff Crawford-Hall alerted her readers to the issuance of the June 0 Decision, she flagged the July deadline to respond to it. This establishes that Plaintiff Crawford-Hall read the June 0 Decision with enough scrutiny to understand that an administrative appeal of the decision had to be filed within 0 days of the date of receipt of it. RJN Ex. B at. During this period, Plaintiff used the name Nancy Crawford-Hall, a name she also used before the agency. See, e.g., AR00 (Letter from A. Barry Cappello, attorney for Nancy Crawford-Hall, to Amy Dutschke, Regional Director, BIA (Oct., 0); AR00 (Letter from A. Barry Capello, attorney for Nancy (Anne) Crawford-Hall, to Amy Dutschke, Regional Director, BIA (Nov., 0); AR0.00- (Notice of Appeal filed by Anne (Nancy) Crawford- Hall, in her personal capacity and as representative of various entities, including the San Lucas Ranch LLC and Holy Cow Performance Horses LLC ). SANTA YNEZ VALLEY JOURNAL, Who We Are, (retrieved Oct., 0). The June 0 Decision is still posted on the P.O.L.O. website. See (retrieved Oct., 0). -- :-cv-0-svw

14 Case :-cv-0-svw-afm Document - Filed 0// Page of Page ID #: 0 0 ii. Plaintiffs Understood Where to File an Appeal Under the byline SYVJ Staff, Plaintiff Crawford-Hall s publication encouraged readers to attend an upcoming County Board of Supervisors meeting to urge the County to administratively appeal the June 0 Decision: The [County Board of Supervisors] will hear public comment before going into closed session to decide whether to file an appeal before a July deadline set by the U.S. Department of the Interior s Interior Board of Indian Appeals in Virginia. The Preservation of Los Olivos... learned on June that the Bureau of Indian Affairs (BIA) determined it will annex into trust the property located across Highway from the Chumash Casino Resort in Santa Ynez. RJN Ex. E at. (emphasis added). While this further confirms that Plaintiff Crawford-Hall knew of the appeal deadline, it also reveals that she understood that such appeal had to be sent to Interior s appellate entity, the Interior Board of Indian Appeals ( IBIA ), located in Arlington, Virginia. Plaintiff Crawford-Hall was well-versed in the appeal instructions provided in the June 0 Decision. iii. Plaintiffs Understood the Onus was on Them to Appeal Subsequent issues of the Santa Ynez Valley Journal spilled considerable ink on the news that the County opted not to pursue an administrative appeal of the June 0 Decision. The County s decision to forego an appeal was described as a setback for several local community groups, who plan to appeal the decision without the [County Board of Supervisors ] backing. RJN Ex. F at. An open letter to the County Board of Supervisors concluded, in the following manner: [T]he Santa Barbara County Board of Supervisors exhibited such woeful preparation, attitude, behavior and etiquette during a recent meeting. We refer to the docket item of whether or not Santa Barbara County should appeal the BIA decision to allow the Chumash to take. acres into trust. RJN Ex. G at :-cv-0-svw

15 Case :-cv-0-svw-afm Document - Filed 0// Page of Page ID #: 0 0 Under her own byline, Plaintiff Crawford-Hall took the County to task over the decision not to appeal, stating that they... voted / in an unusual manner to not appeal the recently granted fee-to-trust application for the. acre parcel in Santa Ynez across the highway from the casino leaving residents with the obligation to file an appeal because [their] government won t. RJN Ex. H at,. Despite continuing to use the Santa Ynez Valley Journal as a platform to oppose the acquisition of land in trust for the Tribe, both for herself, see RJN Ex. I at -, and entities such as the citizens group, Preservation of Los Olivos ( POLO ), see RJN Ex. J at -, and despite knowing that the County opted not to appeal the June 0 Decision, Plaintiffs chose to forego the filing of an administrative appeal. Whether Plaintiffs made this choice because they mistakenly relied on POLO to represent their interests, or because they simply chose to drop the matter, is ultimately irrelevant. The result, however, is not. Plaintiffs were required to timely file an administrative appeal of the June 0 Decision before seeking relief from this Court on the issue of Secretary s IRA authority vis-à-vis the Tribe. Having failed to do so, Plaintiffs Second Claim for Relief must now be dismissed. C. That Plaintiff is Now Time-Barred from Pursuing an Administrative Appeal is Irrelevant and Does Not Negate the Exhaustion Requirement The fact that Plaintiffs are now time-barred from pursuing an administrative appeal of the June 0 Decision is not a basis to allow the Second Claim for Relief to proceed. The Ninth Circuit specifically reject[ed] the idea that [a plaintiff s] own failure to bring a timely administrative appeal renders such an appeal futile for purposes of an exception to the exhaustion requirement. Stock West Corp., F.d at. Unless we limit the scope of [plaintiff s] case as it presently stands, any party could obtain judicial review of initial agency actions simply by waiting for the administrative appeal period to run and then filing an -0- :-cv-0-svw

16 Case :-cv-0-svw-afm Document - Filed 0// Page of Page ID #: 0 0 action in district court. Id. at. To allow otherwise i.e., to allow a plaintiff who failed to exhaust to be heard on the merits of a challenge to an agency decision because they have no other forum would be in flat contravention of the principles of exhaustion. Id. at (quoting White Mountain Apache Tribe, 0 F.d at ). [E]xhaustion may not be achieved through a litigant s procedural default of his or her available remedies. Laing v. Ashcroft, 0 F.d, (th Cir. 00). The exhaustion requirement demands compliance with an agency s deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of proceedings. Woodford, U.S. at 0-. Plaintiffs knew of BIA s June 0 Decision when it was issued, understood that a timely administrative appeal needed to be filed in order to challenge it, and encouraged others to pursue such an appeal. For whatever reason, they failed to pursue an administrative appeal of the June 0 Decision. Plaintiffs cannot now seek judicial review of a claim they chose to forego five years ago. Again, Plaintiffs Second Claim for Relief must be dismissed. III. Plaintiffs Fifth Claim for Relief Must be Dismissed Plaintiffs Fifth Claim for Relief, Compl. -, relies on the remarkable proposition that Interior s acceptance of title to the Property in trust, which Interior did pursuant to its regulations, deprived them of an interest protected by the APA. Plaintiffs contend that they are entitled to the remedy of mandamus under the All Writs Act, U.S.C. (a), to compel Interior to convey the Property out of trust during the pendency of this suit. Plaintiffs claim that this amounts to a protectable right under Section 0 of the APA, U.S.C. 0, such that this Court may utilize the All Writs Act to reverse an action already taken by Interior pursuant to duly promulgated regulations. There is, however, no such right or See C.F.R..(c)()(iii). -- :-cv-0-svw

17 Case :-cv-0-svw-afm Document - Filed 0// Page of Page ID #: 0 0 interest protectable under Section 0. Even if there were such a right to the extraordinary remedy of mandamus, it is unavailable to Plaintiffs as a matter of law. Miller v. French, 0 U.S., (000). Thus, Plaintiffs Fifth Claim for Relief must be dismissed. A. Plaintiffs Lack Standing to Pursue Mandamus Relief A case or controversy must exist for a court to exercise its judicial power under Article III of the United States Constitution. Warth v. Seldin, U.S. 0, (). One element of the case-or-controversy requirement is that plaintiffs must establish that they have standing to sue. Clapper v. Amnesty Int l USA, S. Ct., (0) (internal quotations and citations omitted). In Lujan v. Defenders of Wildlife, the Supreme Court explained that the irreducible constitutional minimum of standing contains three elements. 0 U.S., 0 (). First, plaintiffs must show that they have suffered an injury in fact to a legally protected interest and that injury is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical. Friends of the Earth v. Laidlaw Envtl. Servs. (TOC), Inc., U.S., 0- (000). Second, there must be a causal connection between the injury and conduct complained of, such that the injury is fairly traceable to the challenged action of the defendant. Lujan, 0 U.S. at 0-. Finally it must be likely, and not merely speculative, that the injury will be redressed by a favorable decision. Id. Here, Plaintiffs have only alleged a hypothetical injury stemming from Interior s acceptance of the Property into trust. Plaintiffs further allege that the immediate removal of [the Property] from trust is warranted because Plaintiffs cannot obtain injunctive relief against the Tribe. Compl. -. This candid admission reveals that Plaintiffs are not harmed by the trust status of the Property. Instead, the hypothetical injuries Plaintiffs allege arise, if at all, from construction activities that the Tribe a non-party to this suit may decide to undertake at some point in the future. Plaintiffs cannot obtain the extraordinary remedy of mandamus -- :-cv-0-svw

18 Case :-cv-0-svw-afm Document - Filed 0// Page of Page ID #: 0 0 against the United States by pointing to potential future actions by a third party as the source of potential future harm. This is especially true when such third party has declared that it has no plans to commence construction on the subject Property. See RJN Ex. J. (Declaration of Kenneth Kahn). Plaintiffs effort to establish Article III standing for their Fifth Claim for Relief falls far short of the standard required to invoke this Court s jurisdiction and therefore must be dismissed. B. Plaintiffs Fifth Claim for Relief Fails to State a Claim Upon Which Relief Can be Granted Plaintiffs Fifth Claim for Relief is entirely premised on the meritless assertion that Interior s compliance with duly promulgated regulations, requiring that Interior accept the Property in trust, deprives Plaintiffs of an alleged right to relief under Section 0. Compl.. Plaintiffs do not challenge the regulations at issue, nor do they allege Interior erred when it complied with its regulations. Instead, Plaintiffs assert that they have a protectable right to compel Interior to convey the Property out of trust and back to the Tribe during the pendency of this suit. Interior has no such duty under statute or regulation, and thus, Plaintiffs have no plausible claim under either Section 0 or the All Writs Act. i. Section 0 Offers Plaintiffs No Relief Section 0 allows courts to grant interim relief, but only to postpone the effective date of an agency action or to preserve status or rights pending conclusion of the review proceedings. U.S.C. 0 (emphasis added). Plaintiffs do not seek interim relief to postpone the effective date of the agency decisions or to delay the taking of the Property in trust to preserve the status quo ante. Plaintiffs instead seek to have the Court alter the status quo by directing Interior to convey the Property out of trust. By its very terms, Section 0 does not authorize a court to issue a preliminary injunction that alters the status quo or dictates specific terms and conditions to an agency. See, e.g., Attorney Gen. s Manual on the APA at 0 () ( The subsection does not permit a court to -- :-cv-0-svw

19 Case :-cv-0-svw-afm Document - Filed 0// Page of Page ID #:0 0 0 order the grant of an initial license pending judicial review of an agency s denial of such a license ). Section 0 does not contemplate any such lawsuit or claim. Plaintiffs can only invoke Section 0 by demonstrating that there is a right that could be preserve[d], but no such showing can be made. Section 0 provides no right or agency duty to delay implementation of the decisions at issue in this suit; nor does it provide Plaintiffs with a right to compel Interior to convey the Property out of trust. When on January, 0, the former Principal Deputy Assistant Secretary issued his order affirming BIA s December, 0 Notice of Decision ( NOD ) to acquire the Property in trust for the Tribe, the NOD became final for the agency and not subject to further administrative review. Accordingly, Interior was not required by any statute, regulation, or other authority to delay implementation of the NOD by postponing the acceptance of title to the Property. Interior regulations codified at C.F.R..(c)()(iii) instead directed the agency to acquire title to the Property after relevant requirements were satisfied, which is what occurred. Plaintiffs passing reference to revoked agency regulations or abandoned policies, Compl., fails to demonstrate that the agency had any duty to delay the acceptance of title to the Property, or that Plaintiffs had any right to such delay or any right to compel Interior to upset the status quo regarding the Property s trust status. Plaintiffs have no plausible claim for Section 0 relief. We note that Plaintiffs Complaint makes no attempt to plead the standards applicable to a request for emergency relief under Section 0, which mirror the standards applicable to preliminary injunctions. See, e.g., Humane Soc y of the U.S. v. Gutierrez, F.d, (th Cir. 00); B.A. Wackerli, Co. v. Volkswagen of Am., Inc., No. :-cv-00, 0 U.S. Dist. LEXIS, * (D. Idaho Aug., 0). Plaintiffs have not sought emergency mandamus or injunctive relief, and the United States reserves all rights and arguments if they do. -- :-cv-0-svw

20 Case :-cv-0-svw-afm Document - Filed 0// Page 0 of Page ID #: 0 0 ii. The All Writs Act Offers Plaintiffs No Relief The All Writs Act which authorizes courts to issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law, U.S.C. (a) does not create an independent basis for federal subject matter jurisdiction. See United States v. Denedo, U.S. 0, (00); Clinton v. Goldsmith, U.S., - (); Perez v. United States, No. -, 0 U.S. Dist. LEXIS 0, * (C.D. Cal. Nov., 0) (citing Lights of Am., Inc. v. United States Dist. Ct., 0 F.d, 0 (th Cir. )). Mandamus is a drastic and extraordinary remedy reserved for really extraordinary causes. Middleton v. Santa Barbara Police Dep t, No. -0, 0 U.S. Dist. LEXIS 0, * (C.D. Cal. July, 0) (quoting Cheney v. United States Dist. Ct., U.S., 0 (00)). To seek a writ, Plaintiffs must demonstrate () no other adequate remedy is available; () the right to the writ is clear and undisputable ; and () the issuing court, in its discretion, determinates that a writ is appropriate under the circumstances. Middleton, 0 U.S. Dist. LEXIS 0, at *-0. Plaintiffs do not even attempt tto make this showing in the Complaint, nor could they. First, even if Plaintiffs were entitled to mandamus relief, and they are not, the All Writs Act is not the only adequate remedy available to them. The APA allows plaintiffs to pursue mandamus relief against the United States, see U.S.C. 0(), only if they can demonstrate that the agency failed to take a discrete action that the agency was legally required to take. See Norton v. S. Utah Wilderness Alliance, U.S., - (00). Of course Plaintiffs have not, and could not, demonstrate that Interior had any duty to delay implementation of the NOD when it was issued, or to upset the status quo now. Plaintiffs, therefore, cannot further establish that they have a clear and indisputable right to either a delay or to the upsetting of the status quo, and thus the granting of a writ would be wholly inappropriate. Plaintiffs cannot advance any valid claim for mandamus. -- :-cv-0-svw

21 Case :-cv-0-svw-afm Document - Filed 0// Page of Page ID #: 0 0 Finally, Plaintiffs do not need mandamus to challenge the Secretary s decisions. The trust status of the Property does not affect the Court s jurisdiction over this suit, nor does it limit the Court s ability to issue, at the appropriate time, any appropriate relief to which Plaintiffs might be entitled. Match-E-Be-Nash-She- Wish Band of Pottawatomi Indians v. Patchak, U.S. 0, 0- (0) (suit challenging Interior s decision to acquire land in trust for an Indian tribe on the basis that the Secretary lacks IRA authority, in which plaintiff seeks to strip the United States of title to the land, is a garden-variety APA claim that can be adjudicated by a federal court regardless of the trust status of the property). Plaintiffs have entirely failed to demonstrate they have any right, or that the United States has any duty, to upset the status quo with regard to the subject Property. The drastic remedy of mandamus is unavailable to Plaintiffs as a matter of law, and the Fifth Claim for Relief must therefore be dismissed. CONCLUSION The United States respectfully requests that the Court dismiss with prejudice Plaintiffs Second and Fifth Claims for Relief for the reasons set forth above. DATED: October, :-cv-0-svw Respectfully submitted, JEFFREY H. WOOD Acting Assistant Attorney General Environment & Natural Resources Division /s/ Rebecca M. Ross REBECCA M. ROSS, Trial Attorney DEDRA S. CURTEMAN, Trial Attorney Environment & Natural Resources Division United States Department of Justice Attorneys for the United States