UNITED STATES DISTRICT COURT DISTRICT OF NEVADA * * *

Transcription

1 Case :-cv-00-rcj -VPC Document Filed 0// Page of DANIEL G. BOGDEN United States Attorney HOLLY A. VANCE Assistant United States Attorney 00 West Liberty Street, Suite 00 Reno, Nevada 0 Tel: ( - Fax: ( - 0 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA * * * 0 WINNEMUCCA INDIAN COLONY, THOMAS R. WASSON, CHAIRMAN, v. Plaintiffs UNITED STATES OF AMERICA ex rel. THE DEPARTMENT OF THE INTERIOR, BUREAU OF INDIAN AFFAIRS, WESTERN NEVADA AGENCY, SUPERINTENDENT, and, THE EMPLOYEES, CONTRACTOR AND AGENTS OF THE WESTERN NEVADA AGENCY OF THE BUREAU OF INDIAN AFFAIRS, Defendants. Case No. :-CV-00-RCJ-VPC DEFENDANTS MOTION TO DISMISS COME NOW Defendants e United States of America, Department of e Interior, Bureau of Indian Affairs, Western Nevada Agency, Superintendent, and e employees, contractor and agents of e Western Nevada Agency of e Bureau of Indian Affairs (collectively BIA and hereby move to dismiss is action. Dismissal is warranted on numerous grounds, including

2 Case :-cv-00-rcj -VPC Document Filed 0// Page of 0 0 failure to state a claim for relief, res judicata, lack of subject matter jurisdiction, sovereign immunity, failure to exhaust administrative remedies, failure to perfect service of process and lack of personal jurisdiction. This motion is brought pursuant to Federal Rules of Civil Procedure (b(, (, ( and (. ARGUMENT A. The complaint does not assert any causes of action and us it fails to state a claim for relief. Plaintiffs complaint asserts two claims for relief against e BIA: Temporary Restraining Order and Preliminary Injunction and Declaratory Judgment. (# at pp. -. No oer claims for relief are alleged. Those purported claims for relief, however, are not claims at all; ey are simply remedies. See Chiste v. Hotels.com L.P., F.Supp.d, 0 (S.D.N.Y. 00 ( Declaratory judgments and injunctions are remedies, not causes of action. ; Lima v. American Home Mortgage Servicing, Inc., 00 WL 0 at (N.D.Cal. ( an injunction is a remedy, not a cause of action ; Downingtown Industrial & Agricultural School, B.R., (E.D.Pa. ( a declaratory judgment is a procedural device and not a cause of action. Because e complaint seeks remedies but asserts no causes of action, it fails to state a claim for relief and should be dismissed. B. This action is barred because Winnemucca Indian Colony co-representative William Bills did not auorize e filing of e complaint or e relief it seeks. On September, 00, is Court ruled at [u]ntil some tribal court says oerwise or [William] Bills appears and is heard to object (making e Council s vote -, Wasson represents e will of e [Winnemucca Indian] Council under e Minnesota Panel s ruling. (# p., lines -. On September, 0, William Bills informed e BIA at he objects to e BIA relying upon Mr. Wasson speaking on behalf of e [Winnemucca Indian] Colony. (#. Bills furer advised at [t]he will of Mr Wasson is not e will of e Council or Mr. Bills. (#. Plaintiffs complaint seeks to take action on behalf of e Winnemucca Indian Colony. ( Colony (#. Specifically, e complaint seeks to prevent unwanted persons from entering

3 Case :-cv-00-rcj -VPC Document Filed 0// Page of 0 0 Colony property and interfering wi Colony activities on at property. (#. The complaint also seeks a judgment at would require e BIA to recognize Wasson and his faction as e Colony s government. (#. As noted, however, Wasson does not speak for or represent e will of e Colony. Thus, he is not auorized to seek e removal of unwanted persons from Colony lands or recognition of himself and his faction as e Colony s government. On e contrary, Bills, as co-representative of e Colony, must approve such actions before Wasson may proceed. Bills has not given e requisite approval, however. (#. In fact, Bills has advised at he objects to any action by Wasson at is purportedly taken on behalf of e Colony. (#. Accordingly, because Bills did not auorize e filing of e complaint or e relief it seeks, is action should be dismissed in its entirety. C. The doctrine of res judicata bars e claim for relief at is Court should order e BIA to recognize a tribal government. Three elements determine wheer e doctrine of res judicata applies to bar a claim. There must exist an identity of claims, a final judgment on e merits and privity between e parties. Rowland v. Baca, 0 WL at (N.D.Cal.. Here, Plaintiffs have asserted as a claim for relief at is Court should order e BIA to recognize certain tribal members as e governing body of e Colony. (#. But Plaintiff Thomas R. Wasson ( Wasson asserted at same claim for relief in Magiera et al. v. Norton et al., :0-cv-00-LRH-VPC: Because of [e] continuing refusal by e BIA to recognize e government, e Winnemucca Indian Colony filed e Complaint in is matter to require e BIA to recognize e Council. (Magiera et al. v. Norton et al., :0-cv-00-LRH-VPC; Ex. E at. The first element of res judicata is us met because at claim for relief asserted in bo cases is identical. The second element of res judicata is also met because e Court dismissed e complaint in Magiera and en issued a final judgment at was appealed to e Nin Circuit Court of Appeals. (Magiera et al. v. Norton et al., :0-cv-00-LRH-VPC; Exs. F-G. Lastly, ere is privity between e parties because in Magiera, Wasson asserted his claim against e federal government, as is e case here. (Magiera et al. v. Norton et al., :0-cv-00-LRH-

4 Case :-cv-00-rcj -VPC Document Filed 0// Page of 0 0 VPC; Exs. E-G. Because e claim for relief at is Court should order e BIA to recognize a tribal government is barred by e doctrine of res judicata, at claim for relief should be dismissed from is action. D. Plaintiffs have failed to plead a valid basis for subject matter jurisdiction. Federal courts are courts of limited jurisdiction and, until proven oerwise, a federal court is presumed to lack jurisdiction. Kokkonen v. Guardian Life Ins. Co. of America, U.S., (; Whitman v. Dept. of Transportation, F.d,, n. ( Cir. 00. Because a federal court is presumed to lack jurisdiction, a plaintiff bears e burden to establish e existence of jurisdiction. Kokkonen, U.S. at ; Hollomon v. Watt, 0 F.d, 0 ( Cir.. Plaintiffs complaint asserts at is Court has jurisdiction over is action pursuant to U.S.C., and. (#,. But none of ose provisions provides a proper basis for subject matter jurisdiction for e claims alleged. The first statute cited by Plaintiffs, U.S.C., gives e United States Court of Appeals for e Federal Circuit not is Court jurisdiction over certain matters, which e statute identifies. Because e statute does not apply to is Court, however, Plaintiffs reliance on e statute is misplaced. Plaintiffs reliance on U.S.C. is equally unavailing. That provision gives e district courts jurisdiction over civil actions at arise under e Constitution, laws or treaties of e United States. But Plaintiffs complaint does not allege any such violation. On e contrary, as noted, e complaint simply seeks declaratory and injunctive relief. (# -. Accordingly, U.S.C. does not provide a basis for subject matter jurisdiction over is action. The ird provision on which Plaintiffs rely, U.S.C., provides subject matter jurisdiction for tax-refund claims, contract claims and claims for money damages under e Federal Tort Claims Act ( FTCA. U.S.C. (a(( and (b(. But Plaintiffs complaint does not assert such claims and Plaintiffs have not requested money damages. Moreover, as a

5 Case :-cv-00-rcj -VPC Document Filed 0// Page of 0 0 prerequisite to filling suit under e FTCA, a litigant is required to file an administrative claim wi e appropriate federal agency in is case e BIA. Hollomon, 0 F.d at 0. But Plaintiffs did not file an administrative claim in is matter and is Court us lacks jurisdiction to consider an FTCA cause of action. In sum, Plaintiffs have failed to establish at is Court has subject matter jurisdiction over e claims alleged. Accordingly, is case should be dismissed in its entirety. See Miguel v. Country Funding Corp., 0 F.d, ( Cir. 00 ( The party asserting federal jurisdiction has e burden of establishing it. (citation omitted. E. Plaintiffs claims are barred by e doctrine of sovereign immunity. The United States is immune from suit except as it consents to be sued. Lehman v. Nakshian, U.S., 0 (. No action can lie against e United States unless Congress has auorized e action and consented to e lawsuit. McGuire v. U.S., 0 F.d 0, 0 ( Cir. 00. The terms of e United States consent to be sued define e Court s jurisdiction to hear a case. U.S. v. Sherwood, U.S., (. Because e United States consent to be sued is a prerequisite to jurisdiction, a plaintiff is required to identify a statute at specifically auorizes suit against e United States. See Powelson v. U.S., 0 F.d 0, 0 ( Cir. ( [i]n an action against e United States, in addition to statutory auority granting subject matter jurisdiction, ere must be a waiver of sovereign immunity (emphasis in original. The doctrine of sovereign immunity applies equally to suits brought by tribal plaintiffs. United States v. Mottaz, U.S., (. A suit against a United States officer alleging statutory or constitutional violations qualifies as a suit against e sovereign if relief will require affirmative action by e sovereign. Johnson v. Matews, F.d, - ( Cir.. As noted, Plaintiffs complaint asserts jurisdiction pursuant to U.S.C., and. (#,. But none of ose provisions provides a waiver of sovereign immunity for e claims alleged. Again, U.S.C. gives e United States Court of Appeals for e Federal Circuit not is Court jurisdiction over certain matters. Because e statute does not apply

6 Case :-cv-00-rcj -VPC Document Filed 0// Page of 0 0 to is Court, and, in any event, e provision fails to address e issue of sovereign immunity, Plaintiffs reliance on at statute is unfounded. Plaintiffs reliance on U.S.C. is likewise misplaced. As noted, e provision gives e district courts jurisdiction over civil actions at arise under e Constitution, laws or treaties of e United States. But e provision does not waive e government s immunity from suit. See Hollomon v. Watt, 0 F.d, 0 ( Cir. ( Section does not waive e government s sovereign immunity from suit. ; Rosebud Sioux Tribe v. United States, F.Supp., (D. S.D. ( U.S.C. sets for e general federal question jurisdiction of federal courts, but is not a general waiver of sovereign immunity allowing suits against e government. The ird provision on which Plaintiffs rely, U.S.C., provides a waiver of sovereign immunity for tax-refund claims, contract claims and FTCA claims. Again, Plaintiffs complaint does not assert such claims and, in any event, Plaintiffs did not file an administrative claim before filing suit. Under e circumstances, ere has been no waiver of sovereign immunity. In sum, Plaintiffs have failed to cite any auority at demonstrates e United States waiver of sovereign immunity for e claims alleged in e complaint. Accordingly, e case should be dismissed in its entirety. See Duval Ranching Co. v. Glickman, F.Supp., (D.Nev. ( The absence of e United States consent to be sued is a fundamental jurisdictional defect which negates our subject matter jurisdiction. (citations omitted F. The tribal leadership question is currently e subject of litigation in administrative proceedings. This Court lacks jurisdiction to proceed until a final agency decision issues. The claim at e BIA should recognize a Colony government is currently e subject of ongoing proceedings in Plaintiffs administrative case before e BIA. (Bowker Dec. -0; Ex. B-D. On December, 00, e BIA s Regional Director issued a decision at he would not recognize e Colony s purported governing body. (Bowker Dec. ; Ex. B; TRO Motion Ex.

7 Case :-cv-00-rcj -VPC Document Filed 0// Page of 0 0. On December, 00, e Interior Board of Indian Appeals ( IBIA vacated e Regional Director s decision because he did sufficiently explain e basis for his ruling. (Bowker Dec. ; TRO Motion Ex.. The IBIA en remanded e case wi instructions for e Regional Director to give Plaintiffs an opportunity to submit supplemental briefing and evidence related to an alleged trespass and e tribal leadership issue. (Bowker Dec. ; TRO Motion Ex.. The IBIA also ordered e Regional Director to give oer interested parties an opportunity to respond. (Bowker Dec. ; TRO Motion Ex.. On July, 0, in accordance wi e IBIA s remand order, e BIA requested supplemental briefing and evidence addressing several questions, including e following:. Identification of e names of e individuals and in what capacity ey request action by e BIA.. The current basis for your claim relating to e trespass allegation and to e tribal leadership issue. * * * * *. The specific statute(s, regulation(s, or cases upon which you premise your allegation at BIA is required to recognize Appellants as e Tribal Council for e Winnemucca Indian Colony. (Bowker Dec. 0; Ex. C. On August 0, 0, Plaintiffs submitted supplemental briefing to e BIA. (Bowker Dec. 0; Ex. D. Plaintiffs briefing makes e very same tribal leadership claims at ey have asserted before is Court. (Bowker Dec. 0; Ex. D. Plaintiffs briefing includes e following statement:. Identification of e names of e individuals and in what capacity ey request action by e BIA. The names of e individuals who request action by e BIA for recognition of e government of e Winnemucca Indian Colony are: Thomas R. Wasson, Chairman of e Winnemucca Indian Colony[, ] Misty Morning Dawn Rojo, Vice Chairman, Kaerine Hasbruck, Secretary, Eric Magiera, Treasurer, and Judy Rojo, Councilman of e Council of e Winnemucca Indian Colony. These persons make ese requests in eir official capacity as e Council of e Colony and in eir individual capacity as members of e Colony. * * * * *

8 Case :-cv-00-rcj -VPC Document Filed 0// Page of 0 0 (Bowker Dec. 0; Ex. D (emphasis added. Plaintiffs briefing also includes arguments addressing BIA questions and. (Bowker Dec. 0; Ex. D. Specifically, Plaintiffs argue at e BIA should be required to recognize a tribal government. (Bowker Dec. 0; Ex. D Plaintiffs also accuse e BIA of unreasonably delaying at recognition. (Bowker Dec. 0; Ex. D. In support of eir arguments, Plaintiffs discuss and attach a multitude of auorities and exhibits. ((Bowker Dec. 0; Ex. D. Interested parties, including ose who claim to be e rightful Colony leader, will now have an opportunity to respond to Plaintiffs arguments. (Bowker Dec. 0; Ex. D. Once briefing in e administrative case is complete, e BIA will issue its ruling. (Bowker Dec. 0. Plaintiffs will have e right to seek IBIA review once at final agency decision issues. (Bowker Dec. 0. The fact at an administrative proceeding is currently underway involving e very claims at issue in is litigation deprives is Court of jurisdiction to proceed. Administrative remedies must be exhausted and a final agency decision issued before judicial review is appropriate. See Joint Board of Control v. United States, F.d, ( Cir. ( e federal courts may not assert jurisdiction to review agency action until e administrative appeals are complete ; Hopi Tribe v. Navajo Tribe, F.d 0, ( Cir. (allowing judicial review for final agency decisions. Accordingly, is Court should dismiss is action for failure to exhaust administrative remedies and lack of a final agency decision. G. This Court lacks jurisdiction to direct e BIA to recognize e Colony s governing body. As noted, Plaintiffs complaint asks is Court to order e BIA to recognize certain persons as e Colony s governing body. (#. But ree judges in is district Judges Edward Reed, Brian Sandoval and Larry Hicks have concluded at is Court lacks The regulations for IBIA review of BIA decisions are found at C.F.R..(a (0 and C.F.R.. (0.

9 Case :-cv-00-rcj -VPC Document Filed 0// Page of 0 0 jurisdiction to issue such orders. See U.S. Bancorp v. Ike, F. Supp. d, (D.Nev. 00 ( We agree wi e Ike Group at we have no jurisdiction to determine which group is e governing body of e Te-Moak. Deciding a question involving a tribal election dispute is solely a matter of tribal law, and we do not have jurisdiction to address is question. ; Bank of America v. Bills, :00-cv-0-BES-VPC (# ( Federal Courts do not have jurisdiction to determine tribal governments or to decide issues solely involving intra-tribal politics. * * * This Court decided in its March, 00 Order at e decision by e Minnesota Panel was controlling in is matter. As such, e Court enforced a trial court decision under principles of comity. The Court did not decide a government for e Winnemucca Indian Colony. ; Magiera v. Norton, CV-N-0-- LRH-VPC (# (dismissing claims related to tribal leadership dispute because in e absence of a determination by e BIA, e issues facing e Winnemucca Tribe, which are questions of Tribal law, are not questions properly resolved by a federal court. A majority of courts agrees wi Judges Reed, Sandoval and Hicks at courts are precluded from deciding tribal leadership disputes: Shenandoah v. U.S. Dep t of Interior, F.d nd 0, - ( Cir. (holding at court lacked jurisdiction to determine which member of tribe was proper tribal representative, as question involved purely tribal law; Sac and Fox Tribe of e Mississippi in Iowa, F. Supp. d, (N. D. Iowa 00 ( [D]espite plaintiffs efforts to characterize is action as one based on federal question jurisdiction, e Court finds at e Tribe s leadership dispute raises intra-tribal issues. This Court is wiout jurisdiction to resolve intra-tribal disputes. ; Wheeler v. U.S. Dept. of Interior, F.d, (0 Cir. ( when a tribal forum exists for resolving a tribal election dispute, e Department [of e Interior] must respect e Tribe s right to self-determination and, us, has no auority to interfere. ; Ordinance Ass n v. Babbitt, 0 F.Supp., (D.Wyo. ( unless expressly waived or affected by Congressional enactment, [Indian tribes] have sovereign immunity over intra-tribal disputes such as ose involving tribal government and membership ; Attorney s Process and Investigation Services, Inc. v. Sac and Fox Tribe of e Mississippi in Iowa, 0 F.d, (

10 Case :-cv-00-rcj -VPC Document Filed 0// Page 0 of 0 0 Cir. 00 ( It is plain, en, at wheer Walker was properly removed from office and wheer he had general auority to act on behalf of e Tribe in a governmental capacity are pure questions of tribal law, beyond e purview of e federal agencies and e federal courts.. Moreover, e Colony s Constitution has reserved solely to itself e determination of council membership. See Article III (describing council composition, eligibility and leng of term requirements; Article IV (describing election requirements; Article V (describing how to fill council vacancies and how to remove and recall council members ; and Article VI (describing council powers. In addition, Article VII, entitled Powers of e People, specifically reserves to Colony members e auority to alter council action: Section. The power of e colony lies wi its members. Any actions taken by e council pursuant to constitutional delegation shall be subject to revocation or change at e will of a majority of e colony members rough e adoption of appropriate amendments. Section. The will of e members of e colony shall be imposed rough referendum, initiative, and recall, e procedures to be used in accomplishing is shall be specified in an ordinance which shall be enacted by e council wiin one ( year following e effective date of is document. (Ex. A. The Colony s Constitution us confirms at tribal leadership disputes are and must be resolved rough tribal mechanisms and procedures. Accordingly, e claim at is Court should order e BIA to recognize a tribal government is subject to dismissal. H. Plaintiffs have not perfected service of process. A federal court must obtain personal jurisdiction over a defendant before it can issue a binding judgment against at defendant. Wiout proper service of process, e court has no Goodface v. Grassrope, 0 F.d ( Cir. reached a different result. There, e BIA was required to recognize a tribal government on an interim basis until a tribal election dispute could be resolved. Id. at. The case appears to be an anomaly, however, and inconsistent wi e majority rule. For at reason, is Court should decline to follow e non-binding Eigh Circuit decision. Goodface is also inapposite because a final agency decision had issued in at case, ereby providing jurisdiction under e APA. Here, as noted, no final agency decision has issued. The Colony s Constitution is attached hereto as Exhibit A. 0

11 Case :-cv-00-rcj -VPC Document Filed 0// Page of 0 jurisdiction to render a judgment. Moskovits v. DEA, F.Supp. (D. D.C.. Actual notice by e defendant is not sufficient and does not substitute for compliance wi service requirements. DeFazio v. Delta Air Lines, F.Supp. (D.Mass.. Service upon e United States is effected by ( delivery of e summons and complaint to e United States Attorney or designated official in e United States Attorney s Office or by mailing a copy of e summons and complaint by certified/registered mail to e United States Attorney s Office and ( mailing a copy of e summons and complaint by certified/registered mail to e Attorney General in Washington, D.C. Fed. R. Civ. P. (i(. Service on a federal official of official capacity claims is effected by ( service on e United States as described above and ( mailing a copy of e summons and complaint by certified/registered mail to e official. Fed. R. Civ. P. (i(. Service on a federal official of individual capacity claims also requires service on e United States. Fed. R. Civ. P. (i(. These unambiguous and easy-to-follow rules regarding service of process have been in place for decades. Noneeless, Plaintiffs did not comply wi ese rules; ey filed eir complaint wi e Court but ey did not serve e United States by delivering e summons and complaint to e agency and e Attorney General. Nor did ey serve any individual Defendants. Under e circumstances, e action should be dismissed. See A.W. Reynolds v. United States, F.d, ( Cir. (upholding dismissal of complaint wiout prejudice where plaintiff failed to serve e United States Attorney s Office. 0

12 Case :-cv-00-rcj -VPC Document Filed 0// Page of CONCLUSION For e reasons argued above, is Court should dismiss is action in its entirety. st Dated is day of October 0. Respectfully submitted, DANIEL G. BOGDEN United States Attorney /s/ Holly A. Vance HOLLY A. VANCE Assistant United States Attorney 0 0

13 Case :-cv-00-rcj -VPC Document Filed 0// Page of CERTIFICATE OF SERVICE 0 WINNEMUCCA INDIAN COLONY, THOMAS R. WASSON, CHAIRMAN, v. Plaintiffs UNITED STATES OF AMERICA ex rel. THE DEPARTMENT OF THE INTERIOR, BUREAU OF INDIAN AFFAIRS, WESTERN NEVADA AGENCY, SUPERINTENDENT, and, THE EMPLOYEES, CONTRACTOR AND AGENTS OF THE WESTERN NEVADA AGENCY OF THE BUREAU OF INDIAN AFFAIRS, Defendants. Case No. :-CV-00-RCJ-VPC It is hereby certified at service of e foregoing DEFENDANTS MOTION TO DISMISS, was made rough e Court s electronic filing and notice system or, as appropriate, by sending a copy of same by first class mail, addressed to e following addressee, on is st day of October, 0. 0 Addressee: TREVA J. HEARNE ROBERT R. HAGER Hager & Hearne Law Office E. Liberty Street, Suite 0 Reno, NV 0 /s/ Holly A. Vance HOLLY A. VANCE