NO UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT CADDO NATION OF OKLAHOMA. Plaintiff-Appellant. WICHITA AND AFFILIATED TRIBES, et al.

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1 Appellate Case: Document: Date Filed: 11/16/2018 Page: 1 NO UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT CADDO NATION OF OKLAHOMA Plaintiff-Appellant v. WICHITA AND AFFILIATED TRIBES, et al. Defendants-Appellees On Appeal from the July 9, 2018, Order from the United States District Court for the Western District of Oklahoma No. 5:16-cv-0559-HE Honorable Joe Heaton, Chief Judge BRIEF OF DEFENDANTS-APPELLEES Oral Argument Not Requested November 16, 2018 HOBBS, STRAUS, DEAN & WALKER, LLP William R. Norman, OBA #14919 wnorman@hobbsstraus.com Michael D. McMahan, OBA #17317 mmcmahan@hobbsstraus.com 101 Park Avenue, Suite 700 Oklahoma City, OK Telephone: (405) Facsimile: (405) ATTORNEYS FOR DEFENDANTS/APPELLEES

2 Appellate Case: Document: Date Filed: 11/16/2018 Page: 2 TABLE OF CONTENTS Table of Contents... i Table of Authorities... iii Prior or Related Appeals... viii Oral Argument Statement... ix Glossary... x Jurisdictional Statement... 2 Issues Presented for Review... 3 Statement of the Case... 4 I. Brief History of the Wichita Reservation... 4 II. Brief History of the Litigation...12 III. The Case Before Remand...14 IV. The Case After Remand...15 V. The Case on Appeal...18 Standard of Review...21 Summary of Argument...23 Argument and Authorities...24 I. The Court Lacks Jurisdiction Because Caddo's Claims for Relief are Moot A. Airport Neighbors reinforces mootness B. Possible future development is speculative and not ripe for relief C. The District Court properly denied Caddo's request that the Wichita Tribe be ordered to initiate and consult with Caddo on relocating the History Center because it would not be effective and conclusive relief II. Other Issues Deprive the Court of Jurisdiction A. Caddo lacks a private right of action under NEPA and NHPA B. Caddo failed to proceed under the APA i

3 Appellate Case: Document: Date Filed: 11/16/2018 Page: 3 C. Appellees are protected by tribal sovereign immunity D. Based on Caddo's allegations, Delaware Nation is an indispensable party that cannot be joined E. HUD is an indispensable party that cannot be joined F. This suit is an impermissible collateral attack on an agency proceeding III. Dismissal May be Affirmed for Any Reason Conclusion...53 Certificate of Service...54 Certificate of Compliance with Rule 32(a)...55 Certificate of Digital Submission...55 ii

4 Appellate Case: Document: Date Filed: 11/16/2018 Page: 4 TABLE OF AUTHORITIES CASES Aetna Life Ins. Co. of Hartford, Conn. v. Haworth, 300 U.S. 227 (1937)...33 Airport Neighbors All., Inc. v. United States, 90 F.3d 426 (10th Cir. 1996)... 26, 27, 28 Albers v. Bd. of Cnty. Comm'rs, 771 F.3d 697 (10th Cir. 2014)...20 Alexander v. Sandoval, 532 U.S. 275 (2001)...35 Allen v. Wright, 468 U.S. 737 (1984)...31 Ashcroft v. Iqbal, 556 U.S. 662 (2009)...20 B & B Hardware, Inc. v. Hargis Indus., Inc., 135 S. Ct (2015)... 51, 52 Baker v. Carr, 369 U.S. 186 (1962)...32 Biodiversity Assocs. v. U.S. Forest Serv. Dep't of Agric., 226 F. Supp. 2d 1270 (D. Wyo. 2002)...12 Boles v. Greenville Hous. Auth., 468 F.2d 476 (6th Cir. 1972)... 46, 47, 48 Boris v. Moore, 152 F. Supp. 602 (E.D. Wis. 1957)...45 Burrell v. Armijo, 456 F.3d 1159 (10th Cir. 2006)...42 Caddo Nation of Okla. v. Wichita & Affiliated and Tribes, 877 F.3d 1171 (10th Cir. 2017)... 4, 14, 21, 24 Caddo Tribe of Okla. v. United States, 35 Ind. Cl. Comm. 321 (1975)...7, 8 Cardinal Chemical Co. v. Morton Int'l, Inc., 508 U.S. 83 (1993)...25 Challenge Homes, Inc. v. Greater Naples Care Ctr., Inc., 669 F.2d 667 (11th Cir. 1982)...46 Citizens for Responsible Gov't State Political Action Comm. v. Davidson, 236 F.3d 1174 (10th Cir. 2000)... 21, 32 City of Anadarko, Okla. v. Caddo Elec. Coop., 258 F. Supp. 441 (W.D. Okla. 1966)...47 City of Los Angeles v. Lyons, 461 U.S. 95 (1983)...32 Crowe & Dunlevy, P.C. v. Stidham, 640 F.3d 1140 (10th Cir. 2011)...42 Davis ex rel. Davis v. United States, 343 F.3d 1282 (10th Cir. 2003)...44 Davis v. United States, 192 F.3d 951 (10th Cir. 1999)... 44, 47 iii

5 Appellate Case: Document: Date Filed: 11/16/2018 Page: 5 Deakins v. Monaghan, 484 U.S. 193 (1988)... 31, 32 Enter. Mgmt. Consultants, Inc. v. U.S. ex rel. Hodel, 883 F.2d 890 (10th Cir. 1989)...44 Everglades Ecolodge at Big Cypress, LLC, 836 F. Supp. 2d 1296 (S.D. Fl. 2011)...42 Ex parte Young, 209 U.S. 123 (1908)...42 Fletcher v. United States, 116 F.3d 1315 (10th Cir. 1997)... 40, 42 Found. on Econ. Trends v. Lyng, 943 F.2d 79 (D.C. Cir. 1991)...37 Gardner v. Nashville Hous. Auth., 468 F.2d 480 (6th Cir. 1972)...48 Golden v. Zwickler, 394 U.S. 103 (1969)...33 Guesnon v. McHenry, 539 F.2d 1075 (5th Cir. 1976)...48 Hillsdale Envtl. Loss Prevention, Inc. v. U.S. Army Corps of Engineers, 702 F.3d 1156 (10th Cir. 2012)...38 Imperial Granite Co. v. Pala Band of Mission Indians, 940 F.2d 1269 (9th Cir. 1991)...39 In re L.F. Jennings Oil Co., 4 F.3d 887 (10th Cir. 1993)...20 Jordan v. Sosa, 654 F.3d 1012 (10th Cir. 2011)...26 Karst Envtl. Educ. & Prot., Inc. v. EPA, 475 F.3d 1291 (D.C. Cir. 2007)...36 Lane v. Pena, 518 U.S. 187 (1996)...38 Lewis v. Clarke, 137 S. Ct (2017)...42 Lopez v. Arraras, 606 F.2d 347 (1st Cir. 1979)...48 Los Angeles Cty. v. Davis, 440 U.S. 625 (1979)...20 Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871 (1990)...37 Maricopa Cty., Ariz. v. Valley Nat. Bank of Phx., 318 U.S. 357 (1943)...47 Mass. Mut. Life Ins. Co. v. Russell, 473 U.S. 134 (1985)...36 McCowen v. Jamieson, 724 F.2d 1421 (9th Cir. 1984)...48 McDonald v. Kinder-Morgan, Inc., 287 F.3d 992 (10th Cir. 2002)...19 MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007)...25 Medina v. City & Cty. of Denver, 960 F.2d 1493 (10th Cir. 1992)...52 Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804 (1986)...36 iv

6 Appellate Case: Document: Date Filed: 11/16/2018 Page: 6 Midlantic Nat. Bank v. N.J. Dep't of Envtl. Prot., 474 U.S. 494 (1986)...42 Minnesota v. United States, 305 U.S. 382 (1939)...47 Molinos Valle Del Cibao, C. por A. v. Lama, 633 F.3d 1330 (11th Cir. 2011)...47 N. Arapaho Tribe v. Harnsberger, 697 F.3d 1272 (10th Cir. 2012)...44 Nanomantube v. Kickapoo Tribe in Kan., 631 F.3d 1150 (10th Cir. 2011)...43 Neitzke v. Williams, 490 U.S. 319 (1989)...20 New Mexico Envtl. Imp. Div. v. Thomas, 789 F.2d 825 (10th Cir. 1986)...29 New Mexico ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683 (10th Cir. 2009)...36 Noe v. Metro. Atlanta Rapid Transit Auth., 644 F.2d 434 (5th Cir. 1981)...36 Norvell v. Sangre de Cristo Development Co., Inc., 519 F.2d 370 (10th Cir. 1975)...33 Okla. Tax Comm'n v. Citizen Band Potawatomi Indian Tribe of Okla., 498 U.S. 505 (1991)...40 O'Shea v. Littleton, 414 U.S. 488 (1974)...34 Powell v. McCormack, 395 U.S. 486 (1969)...21 Preiser v. Newkirk, 422 U.S. 395 (1975)...31 Pub. Citizen v. Office of U.S. Trade Representatives, 970 F.2d 916 (D.C. Cir. 1992)...37 Pub. Citizen v. U.S. Trade Representative, 5 F.3d 549 (D.C. Cir. 1993)...37 Ramey Const. Co. v. Apache Tribe of Mescalero Reservation, 673 F.2d 315 (10th Cir. 1982)...39 Ranger Ins. Co. v. United Hous. of N. M., Inc., 488 F.2d 682 (5th Cir. 1974)...46 Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096 (10th Cir. 2010)...21 Sac & Fox Nation of Mo. v. Norton, 240 F.3d 1250 (10th Cir. 2001)...37 San Carlos Apache Tribe v. United States, 417 F.3d 1091 (9th Cir. 2005)... 36, 37, 38 Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978)... 39, 42 Sierra Club v. Morton, 510 F.2d 813 (5th Cir. 1975)...12 v

7 Appellate Case: Document: Date Filed: 11/16/2018 Page: 7 Sierra Club, Inc. v. Bostick, 787 F.3d 1043 (10th Cir. 2015)...38 Smith v. Cheyenne Ret. Inv'rs L.P., 904 F.3d 1159 (10th Cir. 2018)...52 Steffel v. Thompson, 415 U.S. 452 (1974)...32 Surefoot LC v. Sure Foot Corp., 531 F.3d 1236 (10th Cir. 2008)...25 Tal v. Hogan, 453 F.3d 1244 (10th Cir.2006)...20 Tamiami Partners By & Through Tamiami Dev. Corp. v. Miccosukee Tribe of Indians of Florida, 63 F.3d 1030 (11th Cir. 1995)...40 Tele-Commc'ns, Inc. v. C.I.R., 104 F.3d 1229 (10th Cir. 1997)...18 Touche Ross & Co. v. Redington, 442 U.S. 560 (1979)... 35, 36 Transamerica Mortg. Advisors, Inc. (TAMA) v. Lewis, 444 U.S. 11 (1979)... 35, 36 United States v. Alabama, 313 U.S. 274 (1941)...47 United States v. Brooks, 51 U.S. 442 (1850)... 8 United States v. Choctaw Nation, 179 U.S. 494 (1900)... 6 United States v. Fisher, 805 F.3d 982 (10th Cir. 2015)...20 United States v. Testan, 424 U.S. 392 (1976)...40 United States v. U. S. Fid. & Guar. Co., 309 U.S. 506 (1940)...42 Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464 (1982)...31 Virginia Bankshares, Inc. v. Sandberg, 501 U.S (1991)...36 Washington v. United States, 87 F.2d 421 (9th Cir. 1936)...44 Weeks v. Hous. Auth. of Opp, Ala., 292 F.R.D. 689 (M.D. Ala. 2013)...49 Wichita & Affiliated Tribes of Oklahoma v. Hodel, 788 F.2d 765 (D.C. Cir. 1986)...43 Williamsburg Fair Hous. Comm. v. N.Y.C. Hous. Auth., 73 F.R.D. 381 (S.D.N.Y. 1976)...48 Wilton v. Seven Falls Co., 515 U.S. 277 (1995)...25 Wyoming v. U.S. Dep't of Agr., 414 F.3d 1207 (10th Cir. 2005)... 21, 32 STATUTES 5 U.S.C vi

8 Appellate Case: Document: Date Filed: 11/16/2018 Page: 8 54 U.S.C U.S.C RULES Federal Rule of Appellate Procedure Federal Rule of Civil Procedure Federal Rule of Civil Procedure , 46, 47 Federal Rule of Civil Procedure REGULATIONS 36 C.F.R (m) C.F.R OTHER AUTHORITIES 1872 Annual Report of the Commissioner of Indian Affairs Moore's Federal Practice Agreement of Oct. 10, 1872, H. Ex. Docs., 42 Cong. 3 sess., vii (1565), no Jerome Agreement, U.S.-Wichita and Affiliated Bands of Indians, Jun. 4, 1891, 28 Stat Treaty with the Caddoes, U.S.-Caddo Nation, Jul. 1, 1835, 7 Stat , 7, 8 Wichita and Affiliated Tribes Governing Resolution [Constitution]...40 vii

9 Appellate Case: Document: Date Filed: 11/16/2018 Page: 9 PRIOR OR RELATED APPEALS Caddo Nation of Oklahoma v. Wichita & Affiliated Tribes, 877 F.3d 1171 (10th Cir. 2017), appeal dismissed as moot, remanded to No. CIV HE, 2018 WL (W.D. Okla. Jul. 9, 2018). viii

10 Appellate Case: Document: Date Filed: 11/16/2018 Page: 10 ORAL ARGUMENT STATEMENT Because the issues presented are largely jurisdictional or otherwise matters of law, the Wichita Tribe does not believe oral argument will materially aid the Court's deliberations. Accordingly, the Wichita Tribe opposes Caddo's request for oral argument. ix

11 Appellate Case: Document: Date Filed: 11/16/2018 Page: 11 GLOSSARY Terms Relating to the History Center Construction Site Wichita Reservation Lands Land held in trust by the United States jointly for the Wichita and Affiliated Tribes, Caddo Nation and Delaware Nation. Wichita Reservation Tribes Wichita and Affiliated Tribes, Caddo Nation and Delaware Nation. Division Field Tract Partition Agreement Partition Resolutions A 71-acre division of the Wichita Reservation Lands, also referred to in the record as Parcel B. This parcel was ceded to the Wichita and Affiliated Tribes in the 2007 Partition Agreement. The 20-acre cleared field, historically plowed and used for agriculture, located within the 71-acre Division. The small portion of the Field upon which the History Center was constructed. The mutual agreement entered into by the Wichita Reservation Tribes in 2007 to proportionately partition 600 acres of the Wichita Reservation Lands to provide each Wichita Reservation Tribe exclusive governmental authority and jurisdiction over separate lands for use and development. Under the Agreement, Caddo Nation received 312 acres, the Wichita and Affiliated Tribes received 180 acres, and Delaware Nation received 108 acres. Identical resolutions passed by the Wichita Reservation Tribes agreeing to and effectuating the Partition Agreement. x

12 Appellate Case: Document: Date Filed: 11/16/2018 Page: 12 Other Defined Statutes and Terms APA EA FONSI NEPA NHPA Section 106 Process History Center Administrative Procedures Act, 5 U.S.C. 701 et seq. An environmental assessment conducted pursuant to NEPA and/or NHPA. Finding of No Significant Impact issued following completion of the EA. National Environmental Policy Act, 42 U.S.C. 4321, et seq. National Historic Preservation Act, 54 U.S.C , et seq. The consultation process under Section 106 of the National Historic Preservation Act, 54 U.S.C , et seq., specifically 54 U.S.C Wichita History Center. HUD U.S. Department of Housing and Urban Development. May 31 Order TRO Order Below Order entered May 31, 2016, by the District Court, vacating a temporary restraining order that briefly paused construction of the History Center. The temporary restraining order vacated by the May 31 Order. Order entered July 9, 2018, by the District Court, from which the appeal was taken. xi

13 Appellate Case: Document: Date Filed: 11/16/2018 Page: 13 The Wichita and Affiliated Tribes (Wichita, Keechi, Waco, and Tawakoni), Terri Parton ("Parton"), Jesse E. Jones ("Jones"), Myles Stephenson, Jr. ("Stephenson"), Vanessa Vance ("Vance"), Shirley Davilla ("Davilla"), Nahuseah Mandujano ("Mandujano"), and Matt Roberson ("Roberson") in their official capacities (collectively, the "Tribal Officials" and, with the Wichita and Affiliated Tribes, "Appellees" or the "Wichita Tribe"), hereby submit the following brief in answer to the BRIEF OF PLAINTIFF-APPELLANT (Document: ) ("Brief") filed by Caddo Nation of Oklahoma ("Caddo"). 1 1 Any reference to Caddo Nation as a "tribe" or "government" is not to be construed as a concession that Caddo is a validly recognized tribal government or a waiver of the argument that Caddo lacks standing to bring this suit in light of the 1835 Treaty with the Caddoes, U.S.-Caddo Nation, Jul. 1, 1835, 7 Stat. 470 (entered into force on Feb. 2, 1836) ("1835 Treaty"), in which the Caddo "promise[d] to move, at their own expense, out of the boundaries of the United States, and the territories belonging and appertaining thereto... and never more return to live settle or establish themselves as a nation tribe or community of people within the same." Congress has not abrogated the 1835 Treaty. 1

14 Appellate Case: Document: Date Filed: 11/16/2018 Page: 14 JURISDICTIONAL STATEMENT As will be discussed in greater detail below, the Court lacks jurisdiction to consider this appeal because Caddo's claims are moot. The Court also lacks jurisdiction because: a. Delaware Nation, under this Court's precedent, is an indispensable party that cannot be joined due to sovereign immunity. 2 b. HUD is a necessary and indispensable party that cannot be joined due to sovereign immunity. c. Caddo lacks a private right of action under both NEPA and NHPA and failed to exhaust its remedies under the APA. d. The Wichita Tribe and its officials are protected by sovereign immunity that has not been waived. e. Aspects of this appeal constitute an impermissible collateral attack on a pending administrative proceeding. Caddo has presented no evidence or argument overcoming these issues to justify the Court's exercise of jurisdiction in this case. Accordingly, this appeal should be dismissed. 2 Caddo claims to speak for Delaware in the Brief, but has presented no evidence that it is authorized to do so. 2

15 Appellate Case: Document: Date Filed: 11/16/2018 Page: 15 ISSUES PRESENTED FOR REVIEW 1. Whether the District Court correctly determined that Caddo's claims for relief were moot. 2. Whether the Court has jurisdiction to entertain this appeal. 3

16 Appellate Case: Document: Date Filed: 11/16/2018 Page: 16 STATEMENT OF THE CASE This appeal is a continuation of litigation this Court previously determined was moot. Caddo Nation of Okla. v. Wichita & Affiliated and Tribes, 877 F.3d 1171 (10th Cir. 2017). As both this Court and the District Court have noted, Caddo's claims were rendered moot because Caddo failed to seek appropriate orders to halt construction on the History Center during the pendency of this litigation. I. Brief History of the Wichita Reservation This litigation is not just about a building. In this litigation, Caddo has launched an attack against the Wichita Tribe's history and culture. Caddo describes, at great length, what it alleges to be the Wichita Tribe's disregard for the historic nature of the 20-acre Field that is occupied in small part by the History Center, as demonstrated by the following diagram: 4

17 Appellate Case: Document: Date Filed: 11/16/2018 Page: 17 What Caddo neglects to mention is that the 20-acre Field is part of the Wichita Tribe's ancestral homelands a territorial claim that predates Caddo's presence in the area and any involvement with the United States. 5

18 Appellate Case: Document: Date Filed: 11/16/2018 Page: 18 The Wichita Tribe is the original occupant of the Wichita Reservation and was recognized by the United States as vested with a full right of occupancy of the lands within the former Wichita Reservation prior to the effective date of the Jerome Agreement (discussed below), 3 and has been found to have possessed aboriginal title thereto. In 1872, an unratified agreement between the United States and the "Wichitas and other affiliated bands" set aside 743,610 acres within the Wichita Tribe's aboriginal homelands (now present-day southwestern Oklahoma). Agreement of Oct. 10, 1872, H. Ex. Docs., 42 Cong. 3 sess., vii (1565), no. 65.; 1872 Annual Report of the Commissioner of Indian Affairs at , Aplee. Supp. App Later, in 1891, the "Wichita and Affiliated Bands of Indians" entered into an agreement (the "Jerome Agreement") with the United States to cede title to all of the Wichita Reservation lands in exchange for individual allotments of 160 acres each, which allotments were to be made to "[e]ach and every member of said Wichita and affiliated bands of Indians." Jerome Agreement arts. I-II, U.S.-Wichita and Affiliated Bands of Indians, Jun. 4, 1891, 28 Stat. 895 (entered into force on Mar. 2, 1895) (hereinafter "Jerome Agreement"), Aplee. Sup. App. 84. In the Jerome Agreement, Congress confirmed that the agreement was between the United States and "the Wichita and affiliated bands of Indians in Indian 3 United States v. Choctaw Nation, 179 U.S. 494, 550 (1900). 6

19 Appellate Case: Document: Date Filed: 11/16/2018 Page: 19 Territory." Id. The Jerome Agreement expressly recognized that only three different tribes may have an interest to the lands within the Wichita Reservation the Choctaw Nation, the Chickasaw Nation, and the "Wichita and affiliated bands of Indians." Id. art. VIII. The Jerome Agreement stands as contemporaneous evidence that Congress did not recognize the Caddo as a government with any independent interest in the Wichita Reservation. In contrast, Caddo has no claim to the Wichita Reservation. Today's Caddo Indians consist of remnants of several bands that formerly constituted the Caddo Confederacy, also formerly known as the Caddo Tribe prior to its dissolution. The former Caddo Confederacy's lands stretched from current-day Texas, Arkansas, and Louisiana but, by the time the United States claimed rights to these lands, Caddo only held a small segment of its previous territory within the boundaries of presentday Louisiana. Caddo Tribe of Okla. v. United States, 35 Ind. Cl. Comm. 321 (1975). In 1835, the Caddo Tribe entered a treaty ceding Caddo lands to the United States in exchange for monetary compensation. Treaty with the Caddoes, U.S.-Caddo Nation, Jul. 1, 1835, 7 Stat. 470 (entered into force on Feb. 2, 1836), Aplee. Supp. App In the 1835 Treaty, the Caddo "promise[d] to move, at their own expense, out of the boundaries of the United States, and the territories belonging and appertaining thereto... and never more return to live settle or establish themselves as a nation tribe or community of people within the same." 1835 Treaty, art. II (emphasis added); 7

20 Appellate Case: Document: Date Filed: 11/16/2018 Page: 20 United States v. Brooks, 51 U.S. 442, 449 (1850) (quoting same). Thus, the clear intent and result of the 1835 Treaty was that the Caddo "ceded all their land and agreed to move at their own expense beyond the boundaries of the United States, never to return and settle as a tribe." Caddo Tribe of Okla., 35 Ind. Cl. Comm. at 338. By agreeing to these terms, Caddo lost all aboriginal title rights they held to land within the present-day United States (none of which lie within the Wichita Reservation). Id. Congress has never abrogated the 1835 Treaty or acknowledged any claimed Caddo interest in the former Wichita Reservation. Yet, in this lawsuit, Caddo is seeking to assert primacy over the Wichita Tribe's interest in Wichita Reservation lands that were restored to the "Wichita and Affiliated Bands of Indians" in the 1960s. Aplt. App In the process, Caddo has lodged nonsensical and scurrilous accusations against the Wichita Tribe and its officials. As but one example, these charges include (without corroboration or evidentiary support) a statement that dogs smelled something somewhere near the History Center. As with the remainder of its evidentiary claims, Caddo provides no corroborating or supporting evidence such as affidavits, reports of findings, descriptions of what locations were searched, etc. As with the rest of its assertions, Caddo's baseless claim of burials on the 20-acre Field contradicts nearly 150 years of historical records, maps, and archeological studies. 8

21 Appellate Case: Document: Date Filed: 11/16/2018 Page: 21 Throughout this litigation, Caddo has proven immune to facts in favor of exaggerated tabloid-worthy accusations. Citing to its own Amended Complaint as authority, Caddo alleges that in "1871, the Federal Government opened the Riverside Indian Boarding School for the purpose of removing Caddo, Wichita, and Delaware children from their homes, their cultures, and their Nations." Brief at 2. Caddo also alleges that "There is no dispute that the site where the Wichita Tribe has now constructed its History Center and plans to continue further development contains the original site of the Riverside Indian Boarding School." Id. Caddo Amended Complaint further notes that the 71-Acre Division is "[a] portion of the west half W/2 of Section 10, Township seven North (T-7-N), Range 10 West (R-10- W) of the Indian Meridian (1.M.), Caddo County, Oklahoma." Aplt. App Caddo's allegations are not supported by the historical record. Caddo alleges the Riverside School was located in the western half of Section 10, Township 7N, Range 10W. The original survey of the Wichita Reservation, conducted in 1874 [Aplee. Supp. App. 1] three years after the supposed establishment of the Riverside School somewhere in the Field contains no mention of a school anywhere in Section 10, but notes a "commodious dwelling house" belonging to an Indian trader and that, "Several small fields, chiefly cultivated by Caddo Indians, are in the western third of section [10]." Aplee. Supp. App. 32. Based on official records, then, if any individuals were buried where Caddo claims, it means Caddos were farming on top 9

22 Appellate Case: Document: Date Filed: 11/16/2018 Page: 22 of their graves. However, the 1874 survey of Township 10 West contains no documentation of gravesites. Besides being disproven by the historical record, Caddo's accusations are contrary to the record in this case, 4 which demonstrates that the Wichita Tribe took extensive precautions, conducted detailed studies, and attempted numerous times to obtain Caddo's input on the project. 5 During the planning stages, as a result of the studies showing locations of possible historic interest in the Field, the Wichita Tribe relocated the History Center to be farther away from possible artifacts, as shown on the diagram above. The Wichita Tribe took these steps not just because they were required by federal law in fact, the Wichita Tribe took protective measures that exceeded legal requirements and the recommendations of its experts 6 but because the Wichita Tribe takes great pride in its culture and its protection of its history. 4 In its May 31, 2016, Order vacating the brief TRO, the District Court found that, "Plaintiff has not demonstrated that the Wichita Tribe failed to consult or acted arbitrarily in performing its responsibilities under NHPA." Aplt. App. 79. The District Court also found that "Plaintiff has not met its burden of showing that defendant acted arbitrarily in assessing the potential environmental consequences of its proposed building." Aplt. App. 76. These rulings were the subject of extensive briefing in the prior appeal, but this Court did not vacate or reverse the May 31 Order. 5 See, e.g., Aplt. App One of the Wichita Tribe's experts identified Site 34CD352 as the primary site of interest on the Field and recommended that "[n]o construction or subsurface disturbance [should be allowed] within 100 feet in all directions." The Wichita Tribe complied with this recommendation and moved the planned location for the History 10

23 Appellate Case: Document: Date Filed: 11/16/2018 Page: 23 Several objective factors demonstrate the lack of merit to Caddo's claims: For decades, the Wichita Tribe, Caddo and Delaware approved and received income from agricultural leases, pursuant to which the Field was regularly plowed and used for other agricultural purposes. Aplee. Supp. App. 56. Caddo participated in the Partition Agreement, under which it agreed to cede all governmental authority over the Field to the Wichita Tribe. 7 Caddo has failed to carefully litigate this case and did not take the steps necessary to halt construction of the History Center. Nearly three years into this litigation, Caddo has yet to produce any shred of evidence beyond rumor, innuendo, and vague claims by unnamed "Caddo elders" to support its allegations or its claims for relief. In any event, the legal analysis employed by the District Court in the Order Below was correct: This litigation is moot because the History Center project is complete; because Caddo has failed to seek any relief capable of redressing the injury it has alleged; because Caddo has failed to seek any relief regarding operation Center to the other side of the Field. Caddo conflates the site of the History Center, i.e. the land directly beneath the constructed History Center, with that of Site 34CD352, which is at least 500 feet away, and with the entire 20-acre Field. 7 The partitioned tracts were surveyed by the Bureau of Land Management. Aplee. Supp. App Caddo had until March 1, 2009, to object to the plats of the partitioned lands. Aplee. Supp. App Caddo failed to timely object. 11

24 Appellate Case: Document: Date Filed: 11/16/2018 Page: 24 of the History Center; and because Caddo has failed to raise any legitimate claim of further development on the Field. Accordingly, the Order Below should be affirmed. II. Brief History of the Litigation Caddo originally attempted to prevent the construction of the Wichita History Center ("History Center" or "Project"), which was funded by a grant from the U.S. Department of Housing and Urban Development ("HUD"), alleging the Wichita Tribe violated two federal laws, NEPA and the NHPA. 8 After the District Court vacated a briefly imposed temporary restraining order, Caddo immediately appealed. Caddo failed, at any point, to request further District Court proceedings on its motion for a preliminary injunction, failed to seek leave to amend its complaint, and failed to ask the District Court for an injunction pending appeal. Caddo's arguments in this appeal are premised on an assumption that the Wichita Tribe failed to comply with NEPA and NHPA and will fail to comply with the laws in the future. Caddo's contention that the Wichita Tribe failed to comply with the law is not an issue of fact that must be assumed as true when reviewing a motion to dismiss. Rather, it is a legal conclusion advanced by Caddo and on which Caddo bears the burden of proof by a preponderance of the evidence. The law does not allow Caddo to simply allege wrongdoing and receive a judgment in its favor. 8 Caddo primarily alleged the Wichita Tribe failed to comply with NHPA's Section 106 Process for consultation. 12

25 Appellate Case: Document: Date Filed: 11/16/2018 Page: 25 Caddo has failed to satisfy that burden and has not demonstrated that it is entitled to a judgment that the Wichita Tribe violated NEPA and/or NHPA. Under existing jurisprudence, plaintiffs were required to establish by a preponderance of the evidence, rather than by a prima facie showing of deficiencies, that [compliance with NEPA] was inadequate.... Since the basic legal premises on which the district judge based his determination that the federal agency actions passed muster were correct, plaintiffs must shoulder a more imposing burden in this Court. Having failed to convince the trial court that the EIS was inadequate, the plaintiffs must now demonstrate that the lower court's findings accepting the EIS as adequate and the decision to proceed as permissible were clearly erroneous. Sierra Club v. Morton, 510 F.2d 813, 818 (5th Cir. 1975) (emphasis added). As long as the record demonstrates that the USFS reviewed the proffered new information, evaluated the significance or lack of significance of the new information, and provided an explanation for its decision not to supplement the existing analysis, the court must uphold the agency's decision. Biodiversity Assocs. v. U.S. Forest Serv. Dep't of Agric., 226 F. Supp. 2d 1270, 1306 (D. Wyo. 2002). In its May 31 Order, the District Court found that the record demonstrated the Wichita Tribe considered Caddo's belated claims, but that Caddo failed to provide any proof beyond vague allegations. May 31 Order at As a result, the District Court found the Wichita Tribe had complied with its obligations under NEPA and NHPA. The District Court has not reversed this determination and, further, has 13

26 Appellate Case: Document: Date Filed: 11/16/2018 Page: 26 determined that the issue of the Wichita Tribe's compliance with NEPA and NHPA is moot. Caddo admits that a necessary predicate to an award of any relief at the District Court level was a finding that the Wichita Tribe violated NEPA and/or NHPA. In this appeal, Caddo does not seek further review of the District Court's findings that the Wichita Tribe fulfilled its legal obligations. Therefore, it is unlikely that Caddo will be able to demonstrate its entitlement to any of the relief it seeks. In other respects, Caddo's Brief demonstrates a lack of concern for facts, rehashing tired and debunked allegations because they carry emotional impact, not because they are remotely accurate. And Caddo thoroughly misrepresents the record, asserting that Caddo sought certain relief against the Wichita Tribe below specifically, an injunction against continuing operations at the History Center that did not appear in Caddo's Amended Complaint. III. The Case Before Remand In the prior appeal, Caddo appealed the District Court's May 31 Order vacating the TRO it had originally issued in favor of Caddo ("May 31 Order"). Caddo failed to take any further action before the District Court to halt construction of the History Center. Instead, Caddo requested an injunction pending appeal from this Court, which denied the motion "because Caddo Nation had not requested such relief from the district court as Federal Rule of Appellate Procedure 8(a)(1) requires." 877 F.3d 14

27 Appellate Case: Document: Date Filed: 11/16/2018 Page: 27 at Thereafter, and "[f]or the remainder of the time this case was on appeal, Caddo Nation did not move for such injunction in the district court, though it could have done so under Federal Rule of Civil Procedure 62(c)." Id. at Thus, construction of the History Center "went forward unhindered," and within a year of Caddo's appeal, the Wichita Tribe had finished construction of the History Center. Consequently, the Wichita Tribe moved to dismiss the appeal as moot. Id. This Court ultimately granted the Wichita Tribe's motion to dismiss the appeal as moot, but remanded to give Caddo an opportunity to assert claims regarding "the operation of the Center or other activities on the site." Id. at 1178 IV. The Case After Remand On remand, following an established pattern of ignoring this Court's direction and helpful suggestions, Caddo failed to seek relief as suggested by the Court. Aplt. App The relief Caddo requested in its Amended Complaint fell into three broad categories: (1) a retrospective declaration that the Wichita Tribe violated NEPA and the NHPA; (2) an order that the Wichita Tribe and its agents and employees must initiate and conduct good faith consultations with Caddo to consider relocation (i.e., demolition) of the completed History Center; and 15

28 Appellate Case: Document: Date Filed: 11/16/2018 Page: 28 (3) an injunction against any further construction and development on the 20-acre Field. 9 Caddo ignored the District Court's prior ruling that the Wichita Tribe had complied with NEPA and NHPA. Caddo failed to allege any environmental concerns from continued operations at the History Center and failed to allege any specific harm at all. See, e.g., Aplt. App ("Much harm... remains ongoing..."). Caddo failed to specifically identify any pending or threatened construction or development, only speculative references to possible future action. The Wichita Tribe moved to dismiss the case. Aplt. App Evaluating the allegations raised in Caddo's amended complaint, the District Court found that the completed construction and resulting mootness precluded Caddo from obtaining the requested relief. It is undisputed that the History Center has been completed during the pendency of this case. The injunctive relief sought by plaintiff preventing "further construction and development" as to the History Center is therefore unavailable. Further, a declaration as to the propriety of past actions taken would be pointless, as the project to which the various regulatory determinations were directed, the History Center, is completed Before the History Center, the Wichita Tribe had constructed a travel plaza on the 20-acre Field. Note that Caddo's own submissions stated they did not object to this earlier construction "because we did not have concerns that archaeological items were there and the sites were not considered sacred." Aplt. App , To the extent Caddo sought "injunctive relief barring construction or development on other parts of the 20-acre tract or on the larger tract claimed by the Wichita Tribe," 16

29 Appellate Case: Document: Date Filed: 11/16/2018 Page: 29 Order Below, Aplt. App (internal citations omitted). The District Court similarly found that Caddo's request for an order directing the parties to discuss the "relocation" [i.e., demolition] of the History Center was not a form of relief that would avoid mootness. [T]he "remedy" which plaintiff urges is essentially that this court direct the parties to discuss tearing down the building that defendants "be ordered to initiate and conduct good faith consultations with the Plaintiff and other interested parties in order to consider relocation of said History Center." The court concludes such a suggestion does not constitute a "remedy" or "other relief" within the meaning of the mootness inquiry. If directing the parties to a controversy to "discuss it" is "other relief," then no dispute would ever be moot because a court would always have that option available. That is plainly inconsistent with the existence and nature of the mootness doctrine. Further, the parties' submissions make clear that plaintiff already had the opportunity to discuss the History Center project with defendants prior to the start of the NEPA and NHPA evaluation process, and have had multiple discussions during the course of this case. Requiring some further discussion would be pointless." Id. (emphasis added) (internal citations omitted). Thus, the relief Caddo sought on remand was nothing more than an advisory opinion a declaration that past actions of the Wichita Tribe violated federal law and relief in the form of discussions about "relocating" (i.e., demolishing) the the District Court determined such request to be "outside the scope of the NEPA and NHPA determinations that are the subject of the APA claims presented here" and that "claims based on speculation" as to what the Wichita Tribe might do in the future "are unripe for judicial resolution." Order Below, Aplt. App. 394 n.3. 17

30 Appellate Case: Document: Date Filed: 11/16/2018 Page: 30 completed History Center. Accordingly, the District Court correctly determined that Caddo failed to present a case or controversy capable of adjudication and that Caddo had not requested any prospective relief the District Court could award. Accordingly, the District Court dismissed the case, and granted judgment in favor of the Wichita Tribe. The present appeal followed. V. The Case on Appeal Caddo spends much of its Brief trying to rehabilitate its Amended Complaint. For example, Caddo states that it sought relief preventing operation of the History Center. Brief at 21, 32, 37, 40, 41. This completely misrepresents the record. 11 The only request for relief concerning "operations" in the Amended Complaint was directed solely at Defendant Terri Parton and requested specifically that, "Defendant Terri Parton be estopped from taking any further individual action toward the development or operation of any facilities located on the disputed parcel of jointly-owned WCD lands." Aplt. App. 291, 7 (emphasis added). Thus, Caddo requested relief only as to Parton individually, and not in her capacity as President of the Wichita Tribe. 11 Further, Caddo implies that this request for relief was intended to affect operations at any facility on the 20-acre Field. Presumably this would include the Travel Plaza, which Caddo previously stated was not of any concern because "the sites were not considered sacred." Aplt. App ,

31 Appellate Case: Document: Date Filed: 11/16/2018 Page: 31 Thus, in effect, Caddo sought no relief regarding the Wichita Tribe's use of the History Center. 12 Now, as it did over the course of the prior appeal, Caddo is attempting to expand the scope of relief that it sought from the District Court. As before, Caddo is limited by the allegations it raised and the relief it sought from the District Court on remand. 13 Throughout this litigation both the first appeal and now this appeal Caddo has sought the Court's indulgence, seeking the Court's help in filling in the gaps and smoothing over its less than diligent pursuit of its claims. In its Appellant's Brief, Caddo seems to ask the Court to create relief out of whole cloth. This must end. Propounding new arguments on appeal in an attempt to prompt us to reverse the trial court undermines important judicial values. In order to preserve the integrity of the appellate structure, we should not be considered a "second-shot" forum, a forum where secondary, back-up theories may be mounted for the first time. Parties must be encouraged to give it everything they've got at the trial level. Thus, an issue must be presented to, considered [and] decided by the trial court before it can be raised on appeal. Tele-Commc'ns, Inc. v. C.I.R., 104 F.3d 1229, 1233 (10th Cir. 1997) (citations and quotations omitted). 12 In fact, the only relief Caddo sought against all Defendants that involved the History Center directly, was a request that the Court direct the parties to discuss the "relocation" (i.e., demolition) of the History Center. 13 In the prior appeal, this Court noted that Caddo continually tried to modify the scope of relief it sought, seeking an expansion beyond what was originally requested in the District Court. 19

32 Appellate Case: Document: Date Filed: 11/16/2018 Page: 32 It is clear in this circuit that absent extraordinary circumstances, we will not consider arguments raised for the first time on appeal. This is true whether an appellant is attempting to raise "a bald-faced new issue" or "a new theory on appeal that falls under the same general category as an argument presented at trial." We have therefore repeatedly stated that a party may not lose in the district court on one theory of the case, and then prevail on appeal on a different theory. McDonald v. Kinder-Morgan, Inc., 287 F.3d 992, 999 (10th Cir. 2002) (citations and quotations omitted). For the second time, Caddo failed to "give it everything they've got" at the trial level. This Court offered Caddo a second opportunity to pursue this litigation by alleging new claims for relief, but Caddo failed to allege any new facts or claims that would entitle it to relief under federal law. Caddo's Amended Complaint was not grounded in fact, but presumed (without showing) the Wichita Tribe was engaged in construction (which it is not), presumed that the Wichita Tribe would have had an obligation to consult with Caddo on the purported construction, and that the Wichita Tribe had not and would not comply with any consultation obligation a claim refuted by the record and contrary to the District Court's prior findings in the case. affirmed. The District Court rightly dismissed this litigation, and its decision should be 20

33 Appellate Case: Document: Date Filed: 11/16/2018 Page: 33 STANDARD OF REVIEW An appellate court reviews a district court's grant of a motion to dismiss de novo. Albers v. Bd. of Cnty. Comm'rs, 771 F.3d 697, 701 (10th Cir. 2014). In doing so, the appellate court accepts all well-pled facts alleged in the complaint as true, and draws all reasonable inferences from those facts in favor of the plaintiff. Tal v. Hogan, 453 F.3d 1244, 1252 (10th Cir.2006). To survive a motion to dismiss, a complaint must allege facts sufficient to make a claim for relief facially plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). If an issue of law precludes relief, dismissal is appropriate. Neitzke v. Williams, 490 U.S. 319, 326, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). In this case, Caddo's case is based primarily on an assertion of its legal position i.e., that the Wichita Tribe failed to comply with NEPA and NHPA as fact. The District Court has previously held that the Wichita Tribe complied with NEPA and NHPA. Caddo has not alleged other facts to make their claims for relief "facially plausible." Accordingly, dismissal was appropriate. Mootness is reviewed de novo as a legal question. United States v. Fisher, 805 F.3d 982, 989 (10th Cir. 2015) (citing In re L.F. Jennings Oil Co., 4 F.3d 887, 889 (10th Cir. 1993)). "[A] case is moot when the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome." Los Angeles Cty. v. Davis, 440 U.S. 625, 631 (1979) (quoting Powell v. McCormack, 395 U.S. 486,

34 Appellate Case: Document: Date Filed: 11/16/2018 Page: 34 (1969)). This principle applies "with equal force to claims regarding NEPA and the NHPA. 'Ordinarily, a NEPA claim no longer presents a live controversy when the proposed action has been completed and when no effective relief is available.'" Caddo Nation of Okla., 877 F.3d at (quoting Airport Neighbors All., Inc. v. United States, 90 F.3d 426, 428 (10th Cir. 1996)). "The crucial question is whether granting a present determination of the issues offered will have some effect in the real world." Wyoming v. U.S. Dep't of Agr., 414 F.3d 1207, 1212 (10th Cir. 2005) (quoting Citizens for Responsible Gov't State Political Action Comm. v. Davidson, 236 F.3d 1174, 1182 (10th Cir. 2000)). This requires a court to ascertain what type of relief the plaintiff seeks and whether it affords the plaintiff meaningful relief. Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1111 (10th Cir. 2010). Caddo has failed to allege facts or claims for relief demonstrating an ongoing live controversy. Caddo has not sought any relief sufficient to overcome the conclusion that its claims are moot. Accordingly, dismissal was appropriate. 22

35 Appellate Case: Document: Date Filed: 11/16/2018 Page: 35 SUMMARY OF ARGUMENT The Order Below should be affirmed. Even though the Order Below is well reasoned, this Court is free to affirm dismissal for any reason supported by the record, whether relied upon by the District Court or not. The Court lacks jurisdiction over this appeal for many reasons, but notably because Caddo's claims are moot and there is no "live" case or controversy. The History Center project is complete. Caddo has failed to seek any relief regarding continued operations at the History Center. The case upon which Caddo primarily relies to support its contention that its claims are not moot actually reinforces the conclusion that the case is moot because Caddo has not alleged any environmental harm from operation of the History Center. Caddo has not demonstrated that there is current construction or the imminent threat of further development. Caddo has failed to request relief designed to remedy the issues about which it has complained. The absence of a readily justiciable claim deprives the Court of jurisdiction under Article III of the Constitution. Other factors such as tribal sovereign 23

36 Appellate Case: Document: Date Filed: 11/16/2018 Page: 36 immunity and Caddo's failure to join necessary and indispensable parties also serve to deprive the Court of jurisdiction. ARGUMENT AND AUTHORITIES I. The Court Lacks Jurisdiction Because Caddo's Claims for Relief are Moot. When Caddo first filed suit in May of 2016, there was arguably a "live" controversy completely unfounded, but actual and ongoing. At that time, the Wichita Tribe had commenced construction on the History Center and, although Caddo's suit was belated as a result of Caddo's own negligence, 14 the Court could have, in theory, awarded some form of relief if Caddo demonstrated such relief was justified. Ultimately, Caddo failed to properly litigate its case and allowed the History Center to be finished, prompting this Court to dismiss its prior appeal as moot and remand to the District Court for Caddo to try to formulate a viable claim for relief. The District Court properly denied Caddo's requests for relief as moot because the History Center is built and the project is complete. 14 Caddo ignored the Wichita Tribe's invitations to consult on the project. See, e.g., Aplt. App Caddo claims internal disarray prevented it from responding, yet Caddo was able to respond to a similar consultation request regarding a project in Texas during the same time period. 80 Fed. Reg (Aplee. Supp. App. 69). 24

37 Appellate Case: Document: Date Filed: 11/16/2018 Page: 37 However, contrary to Caddo's characterization of the District Court's decision, the finding that the case should be dismissed as moot was not based solely on the completion of the History Center. In fact, the District Court recognized that "completion of the History Center would not necessarily preclude a remedy under NEPA if 'the court can provide some remedy if it determines that an agency failed to comply with NEPA.'" Caddo, however, had not requested a "'remedy' or 'other relief' within the meaning of the mootness inquiry" that the District Court could award. The District Court's holding that Caddo did not request relief sufficient to overcome mootness was sound. As a preliminary matter, Caddo's request for declaratory relief as to the Wichita Tribe's compliance with NEPA and NHPA is moot. Aside from the fact that the District Court had previously found the Wichita Tribe complied with its legal obligations, the proposed activity triggering NEPA and NHPA procedures has been complete for more than a year. HUD was satisfied by the Wichita Tribe's compliance and released funding for the construction of its History Center. "In the intervening year while this case was on appeal in this court, Wichita Tribe completed construction of the History Center." Caddo Nation of Okla., 877 F.3d at Caddo seizes upon references in the FONSI to a grass house and dance ground as proof that there is an imminent threat of additional construction. As was demonstrated from photographs included in the record in the prior appeal, the grass house and associated arbor have been completed. The dance ground aspect was 25

38 Appellate Case: Document: Date Filed: 11/16/2018 Page: 38 The "party seeking a declaratory judgment" and not the opponent "has the burden of establishing the existence of an actual case or controversy." MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 140 (2007) (quoting Cardinal Chemical Co. v. Morton Int'l, Inc., 508 U.S. 83, 95 (1993)). In declaratory judgment actions, the jurisdictional inquiry is "whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." Surefoot LC v. Sure Foot Corp., 531 F.3d 1236, 1244 (10th Cir. 2008) (quoting MedImmune, 549 U.S. at 127). If a court, "in the sound exercise of its judgment, determines after a complaint is filed that a declaratory judgment will serve no useful purpose, it cannot be incumbent upon that court to proceed to the merits before... dismissing the action." Wilton v. Seven Falls Co., 515 U.S. 277, 288 (1995) (emphasis added). As Caddo notes in its brief, a finding that the Wichita Tribe violated NEPA and NHPA is a necessary predicate to any other relief it requested, such as an injunction on further construction and development. 16 This Court suggested that Caddo might be able to fashion other claims for relief related to the "operation of the abandoned after the FONSI was published. Construction is complete and the History Center is open. 16 Alternatively, this relief is unripe for consideration because it based on pure speculation. Order Below, Aplt. App. 394, n.3. Caddo did not identify any specific pending development on the History Center site. 26