In their response to Ak-Chin s Motion to Compel, Defendants fail to even address,

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1 Case 1:06-cv JR Document 101 Filed 06/29/2009 Page 1 of 22 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA THE AK-CHIN INDIAN COMMUNITY, v. Plaintiff, KENNETH SALAZAR, Secretary of the Interior, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) Case No. 06-CV JR Judge James Robertson (Electronically filed on June 29, 2009) I. INTRODUCTION REPLY BRIEF IN SUPPORT OF PLAINTIFF S MOTION TO COMPEL DEFENDANTS TERMINATION OF RIGHTS-OF-WAY GRANTED FOR HIGHWAY 238 WEST In their response to Ak-Chin s Motion to Compel, Defendants fail to even address, much less rebut, Plaintiff s principal argument that Defendants refusal to issue 25 C.F.R cancellation notices for the Highway 238 West rights-of-way ( ROW s ) constitutes an actionable breach of trust. Instead of focusing on this argument raised in Ak-Chin s Motion, Defendants spend much of their 40-page brief reiterating stale arguments for why this Court should stay its hand and defer to the BIA as though this were exclusively a run-ofthe-mill APA case. In short, Defendants response and much of the material they have selected for inclusion in the purported administrative record simply underscores Defendants ongoing pattern and practice of seeking to delay these proceedings and avoid compliance with their clear fiduciary duties.

2 Case 1:06-cv JR Document 101 Filed 06/29/2009 Page 2 of 22 II. DISCUSSION A. Defendants Have Failed To Address Ak-Chin s Principal Argument. At no point in their lengthy opposition brief do Defendants directly address the substance of Ak-Chin s principal argument. Ak-Chin s Complaint primarily states claims for breach of trust. 1 It seeks relief for Defendants breaches of their trust duties, which include, but are not limited to, the refusal to issue cancellation notices for the Highway 238 West ROW s. The regulations governing issuance, approval, and cancellation of those ROW s plainly state that a ROW holder s failure to promptly file an Affidavit of Completion upon the completion of construction on a ROW shall subject the right-of-way to cancellation. 25 C.F.R (2009) (emphasis added). The Highway 238 West ROW holders did not promptly file such affidavits. This failure cannot be cured at this late date, and it certainly is not cured by the recent submission of a legally deficient, so-called Affidavit of Completion created decades after the completion of construction, more than two years after Ak-Chin filed the instant lawsuit and with substantial coaching from the government. Under these circumstances, the plain language of mandates cancellation of the Highway 238 West ROW s. By failing to issue such notices and adamantly refusing to act in the best interests of their beneficiary, Defendants have committed a breach of trust that this Court is well within its authority to remedy. See, e.g., Beckett v. Air Line Pilots Ass n, 995 F.2d 280, (D.C. Cir. 1993) (recognizing that the beneficiary of a trust may maintain 1 As stated in their Complaint and repeatedly in previous briefing to this Court, Ak-Chin s primary and independent cause of action is that of a trust beneficiary seeking to enforce trust duties against its trustee. Defendants have, throughout the course of this litigation and in their response to Ak-Chin s Motion to Compel, largely ignored Ak-Chin s primary cause of action in an effort to shift the focus onto the alternative APA claims. US

3 Case 1:06-cv JR Document 101 Filed 06/29/2009 Page 3 of 22 a suit to compel the trustee to perform his duties as trustee or to redress a breach of trust ); Crawford v. La Boucherie Bernard Ltd., 815 F.2d 117, 120 (D.C. Cir. 1987), cert. denied, 484 U.S. 943 (1987) ( Trust law contemplates the use of broad and flexible equitable remedies as a means for dealing with breaches of fiduciary duty ). 2 Rather than focusing on and responding to this straightforward argument, Defendants have resorted to their now familiar tactics of side-stepping and stonewalling. They alternately mischaracterize Ak-Chin s trust claim as a common law claim, an APA claim, and a motion for a preliminary injunction. They ignore the plain language of Ak-Chin s Complaint and the regulations discussed in Ak-Chin s motion and brief. They seek to resurrect long-rejected arguments that this Court should remand the issue to the BIA for further consideration despite BIA s plainly stated and firmly held position that completely disregards Ak-Chin s best interests. They argue that BIA lacks the resources to issue cancellation notices, ignoring BIA s substantial expenditure of resources in coaching ROW holders on how to submit long overdue, legally deficient affidavits that BIA officials will deem good enough to satisf[y] the purpose of the filing requirement set forth at 25 C.F.R (Defs. Opp. to Pl. s Mot. To Compel at 27, Dkt # 99) (internal quotation omitted)). But at no point do they respond to Ak-Chin s core assertion that Affidavits of Completion were not promptly filed for the Highway 238 West ROW s as required by 2 Ak-Chin has steadfastly maintained that its Motion to Compel is based upon and seeks relief for a breach of trust. While Ak-Chin noted in its initial brief that BIA s conduct was arbitrary, capricious, and contrary to law, this was done to illustrate that BIA s breach of trust was so egregious that it could not withstand even the more deferential standard of review that would apply if this were simply a straightforward APA case. (See, e.g., Pl. s Mem. in Support of Mot. to Compel at 8, Dkt. # 95-2.) US

4 Case 1:06-cv JR Document 101 Filed 06/29/2009 Page 4 of and that, in light of that fact, Defendants failure to issue cancellation notices constitutes a breach of trust. Defendants failure to address Ak-Chin s principal argument is understandable. The lack of promptly filed Affidavits of Completion and Defendants corresponding failure to comply with the express legal requirements of is indisputable. 3 It is likewise indisputable that Defendants failure to issue the mandatory cancellation notices in response to this deficiency is in manifest disregard of Ak-Chin s best interests and constitutes a breach of trust. Defendants have failed to rebut these contentions because they simply cannot do so. Ak-Chin is thus entitled to the requested relief for all of the reasons stated in its Motion to Compel and supporting brief. B. The Purported Administrative Record Submitted By Defendants Is Replete With Support For Ak-Chin s Position. In conjunction with their response brief, Defendants filed what they identify as the administrative record ( AR ) supporting BIA s refusal to issue cancellation notices for the Highway 238 West ROW s. While Ak-Chin disputes the validity and completeness of this putative AR, a review of its contents reveals a number of documents that buttress 3 In fact, as discussed in more detail below, the purported administrative record submitted by Defendants shows that the government has long been aware of the absence of Affidavits of Completion for the Highway 238 West ROW s. (See, e.g., AR ) Nevertheless, Defendants apparently chose to withhold this information despite the fact that Highway 238 West is a high priority roadway for which Ak-Chin has been in urgent need of such information. Unfortunately, the history of Ak-Chin s dealings with Defendants both before and after the initiation of this litigation is replete with similar examples of conduct that are irreconcilable with Defendants role as Ak-Chin s fiduciary. US

5 Case 1:06-cv JR Document 101 Filed 06/29/2009 Page 5 of 22 claims made in Ak-Chin s Motion to Compel and underscore the extent of the government s disregard of its trust duties. 4 By way of example, one document in the purported AR shows that BIA knew as of April 16, 1980 that no Affidavit of Completion had been filed for the subject ROW. (Rightof-Way Checklist, AR ) Despite being in possession of this document, Defendants long refused to disclose or admit this fact to Ak-Chin. Other documents illustrate the BIA s awareness that the ROW regulations at issue are intended to protect the best interests of Indian tribes and facilitate compliance with the government s trust duties. (See, e.g., Rights-of-Way Over Indian Lands Handbook, AR ; Procedural Handbook: Grants of Easement for Right-of-Way on Indian Lands, AR ) Yet 4 Complete review of the purported AR is impossible due to Defendants frequent, erroneous assertions that its contents are privileged. It is well-established that communications between a trustee and its attorneys concerning the administration of the trust fall within the fiduciary exception to attorney-client privilege a rule that has been applied to cases involving breach of trust claims against the United States by individual Indians and tribes. See, e.g., Cobell v. Norton, 212 F.R.D. 24, 27 (D.D.C. 2002); Osage v. United States, 66 Fed. Cl. 244, 250 (2005) (tribe entitled to all documents related to the trust... )(internal citation and quotations omitted)). Even so, Defendants have filed a voluminous privilege log asserting attorney-client privilege with respect to literally hundreds of communications. (See Notice of Lodging of Administrative Record, Dkt. # 97, Ex. A). It is Defendants burden, as Ak-Chin s trustee, to demonstrate the applicability of the attorney-client privilege concerning those materials, and by extension to demonstrate that the fiduciary exception does not apply. See Cobell, 212 F.R.D. at 29 ( The reason for placing this burden on the trustee, rather than the trust beneficiaries, is to prevent trustees from shielding information about trust administration from the beneficiaries, who are entitled to that information ). However, Defendants have fallen well short of satisfying this burden to the contrary, the log entries for the majority of the withheld materials refer to communications directly relating to trust administration and hence to documents that should be disclosed (e.g., s seeking and conveying legal advice regarding affidavits of completion and ROW s ). And in such an instance, invocation of a privilege against disclosure under circumstances in which a fiduciary owes a duty of loyalty to beneficiaries may result in the drawing of an inference that the undisclosed communications were adverse to the beneficiaries interests. Id. at 30 n.6. US

6 Case 1:06-cv JR Document 101 Filed 06/29/2009 Page 6 of 22 Defendants persist in arguing that the interpretation and enforcement of the regulations at issue is wholly unrelated to the government s responsibilities as Ak-Chin s trustee. Still other documents in the AR show that, as implied by 25 C.F.R and , a valid Affidavit of Completion must be prepared and submitted by the engineer who actually oversees the ROW s construction. (Form Affidavit of Completion, AR and AR ).) Yet Defendants contend that an affidavit prepared two decades after the completion of construction by an engineer with no first-hand knowledge of the project nevertheless satisfies the regulations purpose. Moreover, internal BIA s included in the AR reflect an awareness that Ak-Chin never consented to the construction of a private access road on Tribal property. (Oct. 23, from Stan Webb to Elisabeth Brandon, et al., AR ( [C]learly Ak-Chin (and likely the Agency, too) understood that the new road right-of-way was for an expansion of the existing 80 foot right-of-way for [a] public road and related (drainage) purposes. (emphasis in original))). Defendants nevertheless argue that Ak-Chin s purported consent to these ROW s bars Ak-Chin from seeking their cancellation. This is hardly a complete list of all the AR documentation selected by Defendants for submission to the Court which weighs against their position in this litigation. It is enough, however, to illustrate Ak-Chin s point Defendants own documents confirm that, in refusing to issue cancellation notices for the Highway 238 West ROW s, they have acted in conscious disregard of their trust duties and the plain language and purpose of the governing regulations. US

7 Case 1:06-cv JR Document 101 Filed 06/29/2009 Page 7 of 22 C. The Arguments Advanced By Defendants Are Incorrect, Inapplicable, Or Both. Although Defendants opposition brief fails to directly address Ak-Chin s primary contentions, it does put forth a wide array of arguments as to why the Court purportedly cannot grant the relief that Ak-Chin seeks in its Motion to Compel. These arguments are based on mischaracterizations of the facts, misapplications of the law, or a combination of the two. They in no way excuse Defendants breach of trust or prevent this Court from rectifying it. Before proceeding to individually address the arguments raised in Defendants response, it is important to note their common reliance on the assumption that this is a runof-the-mill APA case rather than an action in equity to enforce trust duties. Such an assumption is clearly wrong. Ak-Chin has previously briefed this issue at length, and will not reiterate here all of the flaws with Defendants position. (See, e.g., Pl. s Joint Mem. in Opp n to Remand at 39-49, Dkt. # 22; Pl. s Principal Br. in Opp n to Mot. to Dismiss at 12-22, Dkt. # 59; Pl. s Mem. in Support of Mot. to Compel at 7-8, Dkt. # 95-2.) Suffice it to say that it is now well-settled that [t]his is not an ordinary APA case and that the deference to agency decision-making that would apply to an APA case does not apply here. Cobell v. Kempthorne, 532 F. Supp. 2d 37, 88 (D.D.C. 2008) (Cobell XX) (quoting Cobell v. Norton, 428 F.3d 1070, 1074 (D.C. Cir. 2005) (Cobell XVII)). See also Assiniboine & Sioux Tribes of the Fort Peck Indian Reservation v. Norton, 527 F. Supp. 2d 130, 135 (D.D.C. 2007) ( These cases, like Cobell, sound in traditional equity as well as in administrative law it is the court s obligation to define the trustee s legal duties and resolve the various charges US

8 Case 1:06-cv JR Document 101 Filed 06/29/2009 Page 8 of 22 raised in plaintiffs complaints ). This principle alone rebuts the vast majority of the arguments made and distinguishes essentially all of the case law cited in Defendants brief. 1. The Relief Requested Does Not Exceed The Scope Of The Complaint. In their opposition brief, Defendants repeatedly assert that Ak-Chin s Complaint seeks only a common law accounting and does not encompass the relief sought in the Motion to Compel. 5 A cursory review of the Complaint belies this fundamental misperception of Ak-Chin s claims and requested relief. Ak-Chin s Complaint states, inter alia, that Defendants have failed to maintain complete and adequate records of rights of -way, including for roads in violation of their trust responsibilities. (Compl. 4(g)). As to relief, the Complaint expressly seeks a decree directing Defendants to comply with all other [i.e., non-accounting] fiduciary duties as determined by this Court and to provide to the Community all relevant information regarding rights of way on the Community s trust land. (Compl. Prayer for Relief 5, 7.) The Complaint makes clear that Ak-Chin, from the outset of this litigation, has been keenly interested in improprieties relating to ROW s on its land and has sought the Court s intervention to force Defendants to comply with their trust duties with respect to such conveyance. These issues have, and have always been, central to this litigation and Defendants suggestion to the contrary is specious. (See Jan. 29, from Jay Daniels to Shirley Van Alstine, AR ( [M]ost tribal trust cases are for monetary 5 Defendants repeatedly attempt to muddy the waters and discredit Ak-Chin s claims by referring to them as common law claims. This, too, is an argument that has been repeatedly raised and refuted. (See, e.g., Pl. s Principal Br. in Opp n to Mot. to Dismiss at 22, Dkt. # 59). Ak-Chin s principal claim is for breach of trust duties derived from treaties, statutes and regulations which have established and govern the trust relationship, and which both expressly and impliedly provide the fiduciary duties that are owed. US

9 Case 1:06-cv JR Document 101 Filed 06/29/2009 Page 9 of 22 accounting. But the Ak-Chin one was for records. I was at Pima when the suit was filed and they were only concerned about their records ). Defendants claim that Ak-Chin has repeatedly told this Court that it has invoked the APA s waiver of sovereign immunity only for the basis of bringing a common law accounting is similarly specious and borders on disingenuous. (Defs. Opp n at 15.) As an initial matter, Ak-Chin does not seek a common law accounting and would have no reason to address possible waivers of sovereign immunity for such a claim. Furthermore, Ak-Chin has not argued that its invocation of the APA s waiver of sovereign immunity is somehow limited to its claim for an accounting. As Defendants are well aware, Ak-Chin s argument has always been that the APA s waiver of sovereign immunity is not limited to causes of action based upon the APA, but instead encompasses equitable claims for breach of trust. (See, e.g., Pl.s Joint Mem. in Opp n to Remand at 39-45, Dkt. # 22.) The APA s waiver of sovereign immunity applies equally to Ak-Chin s ROW-related breach of trust claims and its accounting-related breach of trust claims Ak-Chin Has Stated A Viable, Non-APA Claim For Breach Of Trust Duties. Defendants argument that Ak-Chin fails to state a proper cause of action, like most of Defendants flawed arguments, is predicated upon the assumption that there exists no 6 The APA s waiver of sovereign immunity applies to any suit whether under the APA or not. Chamber of Commerce v. Reich, 74 F.3d 1322, 1328 (D.C. Cir. 1996) (emphasis added); see also Clark v. Library of Congress, 750 F.2d 89, 102 (D.C. Cir. 1984). This is the rule in Indian trust cases. See Assiniboine and Sioux Tribe of the Fort Peck Indian Reservation v. the Bd. of Oil and Gas Conservation of the State of Montana, 792 F.2d 782, 793 (9th Cir. 1986) ( [A]bolition of sovereign immunity in 702 is not limited to suits under the Administrative Procedure Act; the abolition applies to every action in a court of the United States seeking relief other than money damages.... No words of 702 and no words of the legislative history provides any restriction to suits under the APA. (quoting K. Davis, Administrative Law Treatise 23:19, at 195 (2d ed. 1983)). US

10 Case 1:06-cv JR Document 101 Filed 06/29/2009 Page 10 of 22 cause of action outside of the APA to enforce Defendants trust duties. As discussed above and in previous briefing in this case, this assumption is patently erroneous; Ak-Chin has an equitable cause of action to enforce Defendants trust responsibilities that is separate and distinct from its alternative claims under the APA. (See, e.g., Pl. s Principal Br. in Opp n to Mot. to Dismiss at 12-22, Dkt. # 59.) Defendants recycle another stale argument by contending that Ak-Chin has not stated a claim because it has not identified a statute expressly providing an express private right of action. The Supreme Court has held that, given the existence of a trust relationship between the government and an Indian tribe, it naturally follows that the tribe has a right to sue the government for breaching its trust duties. See United States v. Mitchell, 463 U.S. 206, 226 (1983). See also United States v. White Mountain Apache Tribe, 537 U.S. 465, (2003); Cobell v. Norton, 240 F.3d 1081, 1104 (D.C. Cir. 2001) (Cobell VI) ( Federal courts have repeatedly recognized the right of Native Americans to seek relief for breaches of fiduciary obligations ); Cobell v. Babbitt, 91 F. Supp. 2d 1, (D.D.C. 1999) ( Cobell V ) (expressly recognizing the existence of alternative APA and non-apa causes of action). As a trust beneficiary, Ak-Chin has the right to pursue equitable relief for breaches of trust. (See Pl. s Principal Br. in Opp n to Mot. to Dismiss at 19-22, Dkt. # 59.) Ak-Chin does not need to identify a specific statutory provision providing a private right of action in order to bring these claims. Finally, Defendants argument that Ak-Chin has somehow waived any claims relating to the Highway 238 West ROW s by passing Tribal Council Resolutions consenting to the construction of that roadway willfully ignores the facts of this case. Ak-Chin had been unable to make informed decisions regarding the Highway 238 West ROW s and possible US

11 Case 1:06-cv JR Document 101 Filed 06/29/2009 Page 11 of 22 challenges to them because Defendants never fulfilled their fiduciary obligation to provide Ak-Chin with all pertinent information regarding those ROW s. By way of example, BIA never informed Ak-Chin of the ROW holder s failure to comply with the terms of the Grant of Easement, which expressly required compliance with 25 C.F.R (See Pl. s Mot. to Compel, Ex. I, Grant of Easement at 19, Dkt. # ) Instead, Ak-Chin obtained this information only after actively pursuing it through this litigation. Had Defendants fulfilled their trust duties by disclosing the ROW holder s non-compliance to Ak-Chin at an earlier date, Ak-Chin presumably would have sought cancellation of the ROW s at that time. When Ak-Chin has not acted solely because Defendants have breached their trust duties, Defendants cannot cite Ak-Chin s inaction to excuse their additional breaches of trust. Furthermore, the present use of the ROW s exceeds the scope of whatever consent Ak-Chin has given, as evidenced by the presence of an access road to a private, members only golf club on a 1991 ROW that was granted for improved drainage and other considerations, which would be of benefit to the Ak-Chin Indian Community s transportation infrastructure. (T.C.R. A-43-90, Dkt. # 95-9; Ex. H, Photos of Access Rd., Dkt. # ) The purported AR reveals that even BIA officials have internally acknowledged that Ak- Chin never consented to this use of its property. (See Oct. 24, from Stan Webb to Elisabeth Brandon, AR ( [C]learly Ak-Chin (and likely the Agency, too) understood that the new road right-of-way was for an expansion of the existing 80 foot rightof-way for [a] public road and related (drainage) purposes. (emphasis in original)). When the ROW s are used in a manner that clearly exceeds the scope of Ak-Chin s consent, that consent obviously does not prevent Ak-Chin from seeking relief. US

12 Case 1:06-cv JR Document 101 Filed 06/29/2009 Page 12 of Exhaustion Of Administrative Remedies Is Not Required In This Case. Defendants next argue that Ak-Chin is not entitled to seek relief from this Court because there has not been final agency action with respect to the Highway 238 ROW s. This argument has several flaws. Once again, Defendants failure to appreciate or recognize the nature of Ak-Chin s claim has resulted in their adoption of an inapplicable argument. An Indian tribe is not required to exhaust any administrative remedies before bringing a breach of trust action against its trustee. See, e.g., Tonkawa Tribe of Indians of Okla. v. Kempthorne, No. CIV F, 2009 WL , at *5 (W.D. Okla. March 17, 2009) (holding that the exhaustion requirement does not apply to an Indian tribe s trust claims); Otoe-Missouria Tribe of Oklahoma v. Kempthorne, No. CIV C, 2008 WL , at *5 (W.D. Okla. Dec. 10, 2008) (holding that a tribal plaintiff was not required to exhaust its administrative remedies prior to pursuing a trust claim in federal district court). This rule naturally follows from the fact that agency review proceedings including those before the IBIA are intended to resolve APA claims rather than statutory trust claims seeking equitable relief. The exhaustion requirement is intended to promote judicial economy, but in the context of a trust claim, judicial economy is better served by having a court of equity decide the issue in the first instance. See, e.g., Assiniboine & Sioux Tribes, 527 F. Supp. 2d at 136 ( [R]esolution of claims raised by plaintiff tribes requires analysis of trust and administrative law principles within the conventional competence of the district court. (internal quotation omitted)). This is particularly so here, where this Court has been involved in the proceedings for more than two years and has acquired substantial expertise and institutional knowledge of the issues that the IBIA simply does not possess. Since Ak-Chin s Motion to US

13 Case 1:06-cv JR Document 101 Filed 06/29/2009 Page 13 of 22 Compel seeks relief for a breach of trust that is properly addressed by this Court, the exhaustion requirement is inapplicable and the cases cited by Defendants all of which involved straightforward APA analysis rather than non-apa breach of trust claims are inapposite. Even if the exhaustion requirement were applicable to Ak-Chin s trust claim, it would not bar Ak-Chin from presently pursuing relief in this Court. During the April 7 status conference, the Court, after correctly noting that it was time to bring this matter to a close, declared that BIA s failure to issue notices by April 30, 2009 would constitute final agency action declining or refusing to do so as a matter of law. (Status Conference Tr. 23:5-10, Apr. 7, 2009.) April 30 has now come and gone, and BIA has not issued cancellation notices for the Highway 238 West ROW s. Thus, pursuant to the Court s April 7 ruling, there is final agency action with respect to those ROW s and Ak-Chin is entitled to review of that action in this Court. Finally, Defendants exhaustion argument fails because the futility exception to the exhaustion doctrine would apply even if that this was a typical APA case. (See Pl. s Mem. in Support of Mot. to Compel at 18-20, Dkt. # 95-2.) Defendants wrongly assert that the futility exception does not apply here because the outcome of the administrative process is not certain. While making much of this word, Defendants fail to note how it is defined in this context. For purposes of the futility exception, an adverse decision is considered certain if an agency has articulated a very clear position on the issue which it has demonstrated it would be unwilling to reconsider. Randolph-Sheppard Vendors of America. v. Weinberger, 795 F.2d 90, 105 (D.C. Cir. 1986). As discussed in Ak-Chin s initial brief and as repeatedly displayed to Ak-Chin and this Court during the course of this litigation BIA has articulated a very clear position that it is unwilling to reconsider with respect to the Highway 238 West ROW s. US

14 Case 1:06-cv JR Document 101 Filed 06/29/2009 Page 14 of 22 Because the outcome of the administrative process is certain as that term is used in this context, the futility exception to the exhaustion requirement would allow Ak-Chin to seek relief in this Court even if this were a run-of-the-mill APA case. Defendants argument that administrative appeal requirements that otherwise do not apply to Ak-Chin s claim suddenly became applicable when Ak-Chin, acting out of an abundance of caution, filed a placeholder notice of appeal with the IBIA, is untenable. Ak-Chin stated in its notice that it does not intend to pursue relief through the IBIA, and Ak-Chin has filed a motion for a stay of that appeal pending this Court s resolution of Ak-Chin s Motion to Compel. 7 The sole purpose of Ak-Chin s placeholder appeal was to foreclose any argument that Ak-Chin had waived its right to that proceeding in the event that this Court should deem the exhaustion requirement applicable. However, as discussed above, both the law and the interests of judicial economy militate in favor of this issue being decided by this Court without resort to the administrative appellate process. 4. There Is No Room For Agency Discretion With Respect To The Issuance Of Cancellation Notices In Response To An Incurable Failure To Comply With The Requirements Of Defendants next argue that the decision to issue cancellation notices for the Highway 238 West ROW s is an enforcement decision committed to the absolute discretion of the BIA and not subject to review under the APA. (Defs. Opp. at 24.) Once again, there are numerous flaws with this argument, the first and foremost being that this is not a garden variety APA case. Because this is a trust case, agency discretion is necessarily 7 While the IBIA did not immediately grant a stay upon its receipt of Ak-Chin s notice of appeal, it invited the Community to file a motion for stay further explaining why a stay of the administrative appeal would be appropriate. Ak-Chin accepted the IBIA s invitation and filed a particularized motion for stay on June 16, A copy of that motion is attached hereto as Exhibit A. US

15 Case 1:06-cv JR Document 101 Filed 06/29/2009 Page 15 of 22 constrain[ed] and the Court is not required to defer to agency determinations. Cobell VI, 240 F.3d at 1099, 1101 ( Chevron deference is not applicable in this case ). Even aside from the constraints on agency discretion that necessarily result from the government s trust duty to act in Ak-Chin s best interests, the simple fact remains that the regulations at issue here leave no room for discretion. Section could not be more explicit in stating the consequences of a failure to promptly file an Affidavit of Completion. It does not provide that failure to file the affidavit may subject the ROW to the process at the BIA s discretion; it states that non-compliance shall subject the right-of-way to cancellation. 25 C.F.R (2009). The Highway 238 West ROW holders failed to promptly file Affidavits of Completion, so their ROW s are necessarily subject to termination under And, since it is impossible for the ROW holders to cure this deficiency during the thirty-day period contemplated by , the outcome of the cancellation proceeding is already determined. See 25 C.F.R (stating that the Secretary shall issue an instrument terminating the ROW if the holder does not cure the deficiency during the thirty day period); Star Lake R.R. Co. v. Lujan, 737 F. Supp. 103, 109 (D.D.C. 1990) ( [O]nce a grantee has been notified and fails to correct a problem that is the basis for [a ROW s] termination, the Secretary shall terminate the right-of-way. Nowhere, either on the face of the regulation, or even implied, is there room for excuse or tolling. (emphasis supplied by court)). See also Ass n of Civilian Technicians v. FLRA, 22 F.3d 1150, 1153 (D.C. Cir. 1994) ( The word shall generally indicates a command that admits of no discretion on the part of the person instructed to carry out the directive ). The BIA s alleged discretion cannot trump the mandatory language of the US

16 Case 1:06-cv JR Document 101 Filed 06/29/2009 Page 16 of 22 governing regulations, particularly when considered in conjunction with the trust duty to act in Ak-Chin s best interests. 5. Even If The BIA Had Discretion With Respect To The Highway 238, Its Refusal To Issue Cancellation Notices Would Not Be Reasonable Or In The Best Interests Of The Trust Beneficiary. Defendants have put forward no evidence in support of their contention that the decision not to issue cancellation notices for the Highway 238 West ROW s was a carefully considered determination and a reasonable and prudent exercise of Interior s discretion. (Defs. Opp n at 27.) The purported AR submitted by Defendants reflects no consideration of the policy reasons for or the importance of s requirement that the Affidavit of Completion be promptly filed. It also fails to show any consideration of the regulation s requirement with which the ROW holders failed to comply that the Affidavit of Completion be drafted by the engineer who oversaw the ROW construction project. 25 C.F.R (2009). (See also AR and AR (BIA s prescribed form of Affidavit of Completion stating that construction of the ROW was carried out under the supervision of the affiant)). What little careful consideration that is reflected in the purported AR is focused on the best interests and convenience of BIA and the ROW holders, which in this case are directly in conflict with the best interests of Defendants trust beneficiary. a. The Court need not defer to BIA s interpretation of the regulations at issue. In arguing that this Court must defer to BIA s interpretation of the regulations at issue, Defendants make two crucial errors. The first is that the regulation at issue is US

17 Case 1:06-cv JR Document 101 Filed 06/29/2009 Page 17 of 22 ambiguous. As discussed above, is straightforward as to the consequences of noncompliance. It is not ambiguous, and there is no room for interpretation. Defendants second error is to once again rely on APA principles that are inapplicable to Ak-Chin s trust claim. Even if the regulations at issue were ambiguous, any ambiguity must be resolved in favor of Ak-Chin rather than the BIA s interpretation. The D.C. Circuit has spoken directly to this issue in the context of Indian trust claims: While ordinarily we defer to an agency s interpretations of ambiguous statutes entrusted to it for administration, Chevron deference is not applicable in this case. The governing canon of construction requires that statutes are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit. Cobell VI, 240 F.3d at 1101 (quoting Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766 (1985)). Defendants contention that the BIA s interpretation of the regulations at issue is due deference is completely at odds with settled law. b. BIA cannot read in a vacuum. Defendants also err in arguing that makes the issuance of cancellation notices discretionary in the instant case. They may be correct that , when read in a vacuum, allows the Secretary some discretion in determining whether to issue a notice. However, Ak-Chin does not argue that mandates the issuance of a cancellation notice. Ak-Chin s claim is based on section , which states that a ROW holder s failure to promptly file the required affidavit shall subject the ROW to cancellation. As explained in Ak-Chin s initial brief, removes any discretion that the Secretary might enjoy pursuant to the first paragraph of It mandates the issue of a US

18 Case 1:06-cv JR Document 101 Filed 06/29/2009 Page 18 of 22 cancellation notice, after which point a ROW holder can avoid cancellation only by curing the defect that triggered issuance on the notice during the thirty day period provided by And, as discussed above and below, it is impossible for the ROW holders in this case to cure their failure to promptly file the necessary affidavits. The cancellation of the Highway 238 West ROW s is therefore a foregone conclusion. Defendants claims that Ak-Chin s focus on 25 C.F.R is misplaced and that does not impose any consequences in the event that a grantee fails to [comply] defy understanding. (Defs. Opp n at 32.) Section creates the Affidavit of Completion requirement. Section states that a failure to comply with the requirements stated therein shall subject the ROW to cancellation. That Defendants apparently consider irrelevant only serves to underscore the unreasonableness and indeed the arbitrariness of their interpretation of the controlling regulatory scheme. c. The regulations leave no room for discretion as to whether the failure to promptly file an Affidavit of Completion has been or can be cured. Defendants claim that BIA enjoys discretion to determine whether a ROW holder has cured its failure to promptly file an Affidavit of Completion is also unfounded. Aside from relying on the incorrect assumption that the BIA s interpretations of the regulations at issue are due any deference, it is flatly inconsistent with the plain language of An Affidavit of Completion must be promptly file[d] [u]pon the completion of the construction of any right-of-way. 25 C.F.R It is not possible to promptly file an affidavit decades after it was due. The plain language of the regulation leaves no room for interpretation. US

19 Case 1:06-cv JR Document 101 Filed 06/29/2009 Page 19 of 22 In addition to being inconsistent with the plain language of , BIA s decision that the lack of a promptly filed affidavit can be cured is inconsistent with the regulation s purpose. (See Pl. s Mem. in Support of Mot. to Compel at 14-16, Dkt. # 95-2.) The Affidavit of Completion is intended to trigger field inspection to ascertain whether the ROW holder has complied with the terms of its grant of easement and to determine whether any remedial action is necessary. (BIA Internal Right Of Way Procedures (BIA Internal Procedures), Dkt at 19.) Without this inspection, BIA is left without the full complement of information necessary to protect the best interests of its trust beneficiary. And BIA has long recognized that the purpose of 25 C.F.R. Part 169 is to assist the BIA in discharg[ing] properly the responsibilities and obligations of a trustee to the owner of the land and to provide the BIA with adequate latitude to act in the best interests of the owners. (Bureau of Indian Affairs Manual, AR ; See also BIA Internal Procedures, Dkt 25-2 at ) Since an affidavit cobbled together and submitted decades after the completion of construction on a ROW does not serve this purpose, the BIA does not have discretion to determine that such an affidavit cures a ROW holder s failure to comply with d. Defendants incorrectly assume that they can ignore the plain language of because BIA has wrongly determined that the continued presence of the Highway 238 West ROW s causes no harm to Ak-Chin. Defendants argument that the Highway 238 West ROW s have not harmed Ak-Chin and therefore do not require cancellation is both irrelevant and incorrect. It is irrelevant because does not make the cancellation of non-complying ROW s conditional on BIA s subjective evaluation of harm to the landowner and trust beneficiary. Rather, as discussed above, states that the absence of a promptly file[d] Affidavit of US

20 Case 1:06-cv JR Document 101 Filed 06/29/2009 Page 20 of 22 Completion shall subject the right-of-way to cancellation. 25 C.F.R There is no room for discretion or subjectivity. In addition to being irrelevant, BIA s determination that Ak-Chin has not been (and is not in danger of being) harmed by the Highway 238 West ROW s is simply wrong. Ak-Chin has already addressed and refuted the claim that its consent to the ROW s bars it from seeking their cancellation. (See II.C.2, supra.) Simply stated, Ak-Chin gave its consent without receiving all relevant information from its trustee and the ROW s as built and used exceeded the scope of that consent. Under these circumstances, Defendants can hardly expect the Court to entertain their argument that Ak-Chin s purported consent deprives Ak- Chin of its right to challenge the wrongful use of the ROW s or non-compliance with the related grants of easement. 8 Of course, in concluding that Ak-Chin has suffered no harm in relation to the Highway 238 West ROW s, Defendants disregard the ongoing use of the ROW s in a manner that plainly exceeds the scope of Ak-Chin s consent. Defendants claim that they have been unable to determine whether the creation of a private access road for a members only golf course exceeds the scope of Ak-Chin s consent to a ROW for improved drainage and other considerations, which would be of benefit to the Ak-Chin Indian Community s transportation infrastructure. (Pl. s Mot. to Compel, Ex. G, T.C.R. A-43-90, Dkt. # 95-9; 8 Defendants attempt to discredit Ak-Chin s concerns about ROW expansion by citing to a State of Arizona transportation plan that does not list 238 West on a list of roads slated for expansion between 2008 and (Defs. Br. at 36 n.11, citing Final Report at 11. ) While Defendants are correct that Highway 238 West is not included on the list of roads slated for expansion in that report, they neglect to note that Highway 238 West is also not included on the list of state roads in the report s study area. (See Final Report at 8-10, Ex. 2-4.) Sadly, such an oversight is all too consistent with the level of careful consideration that Defendants have given Ak-Chin s requests for information and action with respect to the ROW s traversing Tribal property. US

21 Case 1:06-cv JR Document 101 Filed 06/29/2009 Page 21 of 22 Ex. H, Photos of Access Rd., Dkt. # ) They further contend, astoundingly, that they are somehow unsure as to whether Ak-Chin would like for BIA to take any action with respect to this unauthorized private roadway. (See Defs. Opp n. at ) The existence of this private road negates any argument that Ak-Chin has not been harmed by the government s failure to enforce the ROW regulations. So too, the government s obdurate refusal to take any action with respect to the road demonstrates the extent to which Defendants have failed to fulfill their fiduciary duty to act in Ak-Chin s best interests. Surely a beneficiary is entitled to expect more than this from its trustee. 6. Ak-Chin Is Entitled To The Requested Relief, Which Is Not An APA Remedy. Defendants final argument is that Ak-Chin is not entitled to the Administrative Procedure Act remedy of termination of the Highway 238 West ROW s. Again, Defendants misapprehend and/or intentionally mischaracterize the nature of the relief that Ak-Chin seeks. Ak-Chin seeks relief in equity for Defendants breach of trust, not an APA remedy. As to Defendants argument that the appropriate remedy is to provide a remand to the agency for further proceedings, Ak-Chin submits that remand is wholly unnecessary and inappropriate here. Ak-Chin has stated a claim in equity for enforcement of Defendants trust duties, and this Court has the equitable authority to order Defendants compliance with those duties. See, e.g., Cobell VI, 240 F.3d at 1108 ( Once a right and a violation have been shown, the scope of a district court s equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies. (quoting Swann v. Charlotte- Mecklenburg Bd. of Educ. 402 U.S. 1, 15 (1971); Manchester Band of Pomo Indians v. US

22 Case 1:06-cv JR Document 101 Filed 06/29/2009 Page 22 of 22 United States, 363 F. Supp. 1238, 1242 (N.D. Cal. 1973) (holding that district courts have jurisdiction over actions to compel the responsible officers of the United States to perform [their trust] duties in the event [that] they have not done so ). The governing regulations plainly indicate that cancellation of the Highway 238 West ROW s is the only appropriate remedy in light of the holder s failure to comply with Given the clear mandate of the regulations, the Court need not and should not punt this issue back to the BIA for further delay. III. CONCLUSION For all of the foregoing reasons, Plaintiff respectfully requests that the Court grant Ak-Chin s Motion to Compel and order Defendants to terminate the rights-of-way issued by BIA in 1980 and 1991 for that portion of Highway 238 West traversing Tribal property. In accordance with LCvR 7(f), Plaintiff also requests that this matter be scheduled for an oral hearing. This the 29th day of June, Respectfully submitted, /s/ Keith Harper KEITH M. HARPER D.C. Bar No kharper@kilpatrickstockton.com G. WILLIAM AUSTIN D.C. Bar No baustin@kilpatrickstockton.com Kilpatrick Stockton LLP th Street, N.W. Washington, D.C Tel: (202) Fax: (202) Attorneys for Plaintiff Ak-Chin Indian Community US

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