Appellate Case: 18-6142 Document: 010110092916 Date Filed: 12/04/2018 Page: 1 NO. 18-6142 IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT PLAINTIFF-APPELLANT, CADDO NATION OF OKLAHOMA 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-00559-HE, Honorable Joe Heaton, Chief Judge REPLY BRIEF OF PLAINTIFF-APPELLANT ORAL ARGUMENT REQUESTED Mary Kathryn Nagle, NYB No. 4965489 Wilson Pipestem, OBA No. 16877 Abi Fain, OBA No. 31370 Pipestem Law, P.C. 320 S. Boston Ave., Suite 1705 Tulsa, OK 74103 918-936-4705 (Office) mknagle@pipestemlaw.com wkpipestem@pipestemlaw.com afain@pipestemlaw.com Attorneys for Plaintiff-Appellant Caddo Nation of Oklahoma
Appellate Case: 18-6142 Document: 010110092916 Date Filed: 12/04/2018 Page: 2 COPORATE DISCLOSURE STATEMENT The Caddo Nation of Oklahoma, pursuant to Fed. R. App. P. 26.1, certifies that it has no stock and therefore no publicly held corporation owns 10% or more of its stock. s/mary Kathryn Nagle Mary Kathryn Nagle i
Appellate Case: 18-6142 Document: 010110092916 Date Filed: 12/04/2018 Page: 3 TABLE OF CONTENTS TABLE OF AUTHORITIES... iii I. FACTUAL BACKGROUND... 1 II. STANDARD OF REVIEW... 2 III. ARGUMENT... 3 A. The Caddo Nation Is A Federally Recognized Tribe.... 3 B. The Caddo Nation s Claims Are Not Moot.... 3 i. The Caddo Nation s Claims Are Not Moot Under Airport Neighbors.... 3 ii. Future Development Is Not Speculative Because The Wichita Tribe Stated It Would Undertake This Development In The EA.. 5 iii. Ordering Consultation Would Constitute Effective Relief.... 6 C. The District Court s Decision Should Not Be Upheld On Grounds The Court Did Not Consider.... 7 i. The Caddo Nation Adequately Pleaded Claims Under The APA. 7 ii. The Wichita Tribe Waived Sovereign Immunity.... 8 iii. The Delaware Nation Is Not An Indispensable Party... 9 iv. HUD Is Not An Indispensable Party.... 10 v. The Caddo Nation s Suit Is Not An Impermissible Collateral Attack.... 11 IV. CONCLUSION... 12 CERTIFICATE OF COMPLIANCE... 13 CERTIFICATE OF DIGITAL SUBMISSION AND PRIVACY REDACTIONS... 14 CERTIFICATE OF SERVICE... 15 ii
Appellate Case: 18-6142 Document: 010110092916 Date Filed: 12/04/2018 Page: 4 TABLE OF AUTHORITIES Cases Airport Neighbors All., Inc., v. United States, 90 F.3d 426 (10th Cir. 1996)... 3, 4, 6, 7 Caddo Nation of Okla. v. Wichita & Affiliated Tribes, No. CIV-16-0559-HE, 2018 WL 3354882 (W.D. Okla. July 9, 2018)...8, 9 Caddo Nation of Okla. v. Wichita & Affiliated Tribes, 877 F.3d 1171 (10th Cir. 2017)... 4 Catron Cty. Bd. of Comm rs, N.M. v. U.S. Fish & Wildlife Serv., 75 F.3d 1429 (10th Cir. 1996)... 8 Davis v. Mineta, 302 F.3d 1104 (10th Cir. 2002)... 3 Equal Emp't Opportunity Comm n v. CollegeAmerica Denver, Inc., 869 F.3d 1171 (10th Cir. 2017)... 2 Heeren v. City of Jamestown, Ky., 817 F. Supp. 1374 (W.D. Ky. 1992), aff d, 39 F.3d 628 (6th Cir. 1994)... 10 Medina v. City & Cty. of Denver, 960 F.2d 1493 (10th Cir. 1992)... 7 Soc y Hill Towers Owners Ass n v. Rendell, 20 F. Supp. 2d 855 (E.D. Pa. 1998), aff d, 210 F.3d 168 (3d Cir. 2000)... 10 Tal v. Hogan, 453 F.3d 1244 (10th Cir.2006)... 5 Wichita & Affiliated Tribes of Okla. v. Hodel, 788 F.2d 765 (D.C. Cir. 1986)... 9 Statutes Administrative Procedure Act ( APA ) 5 U.S.C. 701 et seq.... 4, 7, 8 Federally Recognized Indian Tribes List Act of 1994 108 Stat. 4791 et seq... 3 National Environmental Policy Act ( NEPA ) 42 U.S.C. 4321 et seq.... 3, 4, 6, 7, 8, 9, 10 National Historic Preservation Act ("NHPA") 54 U.S.C. 3000101 et seq.... 4, 6, 7, 8, 9, 10 iii
Appellate Case: 18-6142 Document: 010110092916 Date Filed: 12/04/2018 Page: 5 54 U.S.C. 306108 (formerly 16 U.S.C. 470f)... 1, 6, 7, 11 Regulations 24 C.F.R. 58.13(a)... 11 24 C.F.R. 58.2...8, 11 24 C.F.R. 58.2(7)(ii)... 11 24 C.F.R. 58.77(b)... 10 36 C.F.R. 800.2... 11 36 C.F.R. 800.2(c)(2)(ii)(A)... 6 36 C.F.R. 800.16(y)... 10 40 C.F.R. 1508.18... 10 Indian Entities Recognized and Eligible To Receive Services From the United States Bureau of Indian Affairs, 81 Fed. Reg. 26826... 3 iv
Appellate Case: 18-6142 Document: 010110092916 Date Filed: 12/04/2018 Page: 6 I. FACTUAL BACKGROUND In the Wichita and Affiliated Tribes ( Wichita Tribe ) opposition brief, the Wichita Tribe makes much of the Caddo Nation s lack of ancestral ties to the lands held in trust jointly for the Wichita Tribe, Caddo Nation and Delaware Nation ( WCD lands ). The fact that Caddo Nation was forcibly removed from its own ancestral lands and relocated to the WCD lands, however, in no way detracts from the Nation s rights under federal law to engage in consultation under the National Historic Preservation Act ( NHPA ) 106. 1 Indeed, the recent development in the BIA Regional Director s October 5, 2018 decision (see Caddo Nation Motion to Take Judicial Notice and Supplement the Record, ECF No. 10609536 (Dec. 3, 2018)), makes clear that the Federal Government continues to hold these lands in trust for all three Tribes. Moreover, even if the land was somehow partitioned in accordance with federal law, the Wichita Tribe would still be obligated under 106 to engage in good faith consultation with the Caddo Nation concerning the Caddo burials and cultural patrimony at the site of the original Riverside Indian Boarding School. The Caddo Nation further refers this Court to the Nation s discussion of the relevant facts as laid out in the Nation s opening brief, see Aplt. Br. 2, in 1 Section 106 is codified at 54 U.S.C. 306108 (formerly 16 U.S.C. 470f). 1
Appellate Case: 18-6142 Document: 010110092916 Date Filed: 12/04/2018 Page: 7 particular, the fact that the Caddo Nation requested consultation within one month of having been informed by the Wichita Tribe that the site for planned construction was eligible for inclusion on the National Register of Historic Places. See Aplt. App. 0265 131-32, 0700. Finally, as the Nation makes clear in its opening brief, the Caddo Nation s Amended Complaint did not merely request that the District Court tear down the building. Instead, the Nation s Amended Complaint requested that the Wichita Tribe be ordered to engage in good faith consultation with the Caddo Nation regarding not just relocation, but also ongoing activities and operations at the History Center, to ensure that going forward, Caddo burials and cultural patrimony would not be harmed. Aplt. App. 0291 4. For these reasons, the Caddo Nation s claims are not moot, and the District Court s decision should be reversed and remanded. II. STANDARD OF REVIEW This Court reviews de novo the District Court s conclusion that the Caddo Nation s claims are entirely moot. Equal Emp t Opportunity Comm n v. CollegeAmerica Denver, Inc., 869 F.3d 1171, 1173 (10th Cir. 2017). 2
Appellate Case: 18-6142 Document: 010110092916 Date Filed: 12/04/2018 Page: 8 III. ARGUMENT A. The Caddo Nation Is A Federally Recognized Tribe. The Caddo Nation is a federally recognized Tribe included on the BIA s list of Indian Tribes, 2 the United States has taken no action to terminate the Caddo Nation s sovereign status as an Indian Tribe. The Wichita Tribe s attempt to cast dispersions on the Nation s sovereign status are both baseless and wrong. B. The Caddo Nation s Claims Are Not Moot. i. The Caddo Nation s Claims Are Not Moot Under Airport Neighbors. The Wichita Tribe attempts to argue that the National Environmental Policy Act ( NEPA ), 42 U.S.C. 4321 et seq., does not apply to the Caddo Nation s claims to protect cultural patrimony and Caddo burials because NEPA only entertains claims related exclusively to environmental harm. See Aplee. Br. 27-28. NEPA, however, is about process, and thus harm... may be presumed when an agency fails to comply with the required NEPA procedure. Davis v. Mineta, 302 F.3d 1104, 1115 (10th Cir. 2002). Here, the Wichita Tribe s failure to follow the proper procedures in completing an EA (i.e., the Tribe s failure to consider alternatives), gives rise to the Caddo Nation s claims under NEPA. 2 Federally Recognized Indian Tribes List Act of 1994, 108 Stat. 4791 et seq.; see also Indian Entities Recognized and Eligible To Receive Services From the United States Bureau of Indian Affairs, 81 Fed. Reg. 26826 (including Caddo Nation of Oklahoma ). 3
Appellate Case: 18-6142 Document: 010110092916 Date Filed: 12/04/2018 Page: 9 The Wichita Tribe further attempts to cast Airport Neighbors All., Inc., v. United States as a decision wherein this Court held that it is clear that claims related to construction are moot once construction is complete. Aplee. Br. 28 (citing Airport Neighbors All., Inc., v. United States, 90 F.3d 426, 429 (10th Cir. 1996)). The Caddo Nation s Amended Complaint does not seek to halt construction on the History Center, but rather, the Amended Complaint seeks a remedy for the Wichita Tribe s ongoing violations of both NEPA, 42 U.S.C. 4321 et seq., and NHPA, 54 U.S.C. 3000101 et seq., specifically the Tribe s operation of the History Center and continued refusal to engage in good faith consultation regarding plans for additional construction, claims that sit well within this Court s prescription on remand. 3 See Caddo Nation of Okla. v. Wichita & Affiliated Tribes, 877 F.3d 1171, 1178 (10th Cir. 2017) (The Caddo Nation may have new claims for relief it can seek in district court regarding the operation of the Center or other activities on the site. ) (emphasis added). 3 The Caddo Nation s Amended Complaint does not seek relief related to halting the History Center s Construction. See Aplt. App. 0246 45 ( Plaintiff further seeks a declaratory judgment that Defendants have violated the APA, NHPA, and NEPA by failing to consult with the Caddo Nation. ); Aplt. App. 0291 3 (requesting that [t]he Defendants, their agents and employees, be enjoined during the pendency of this action and permanently from any further construction and development on the twenty acre tract.... ); Aplt. App. 0291 4 (requesting [t]he Defendants, their agents and employees, be ordered to initiate and conduct good faith consultations with the Plaintiff.... ); Aplt. App. 0291 7 (requesting injunctive relief to halt operations at the History Center). 4
Appellate Case: 18-6142 Document: 010110092916 Date Filed: 12/04/2018 Page: 10 Finally, the Wichita Tribe contorts the record in this case to assert that the Caddo Nation s claims are moot because they are the result of Caddo s own failure to respond to the Wichita Tribe s requests for consultation.... Aplee. Br. 29. However, as the Caddo Nation s Amended Complaint alleges, within one month of having been informed for the first time of the Wichita Tribe s findings of historical significance at the Riverside Indian Boarding School as well as the Tribe s intentions to build there the Caddo Nation voiced its opposition. See Aplt. App. 0265 131-32, 0700. To the extent that the Wichita Tribe disputes these factual allegations, such disputes are not to be resolved in the Wichita Tribe s favor on a motion to dismiss. See Tal v. Hogan, 453 F.3d 1244, 1252 (10th Cir.2006) (appellate court accepts all well-pleaded facts alleged in the complaint as true, and draws all reasonable inferences from those facts in favor of the plaintiff). ii. Future Development Is Not Speculative Because The Wichita Tribe Stated It Would Undertake This Development In The EA. The Wichita Tribe cannot fault the Caddo Nation for relying on statements made by the Tribe and/or the Tribe s own archaeologist. John D. Northcutt, who the Wichita Tribe hired to conduct the studies required under the EA, described the Tribe s plans as including the construction of office space, restaurant, hotel, casino, museum, dance grounds, grass hut exhibit, outdoor concert and amphitheater, and parking areas. Aplt. App. 0581. Furthermore, in the Tribe s 5
Appellate Case: 18-6142 Document: 010110092916 Date Filed: 12/04/2018 Page: 11 own EA, the Wichita Tribe stated that [t]he Tribe intends to continue its efforts to develop the site. Aplt. App. 0601. Relying on the Wichita Tribe s own description of its intended plans to continue construction does not constitute speculation. The Wichita Tribe now avers that the Caddo Nation s claims must be moot because no solicitations for consultation, no construction-related activity, and no other activity that might signify that a new project is underway. Aplee. Br. 32. No law or authority, however, requires the Caddo Nation to wait until the Wichita Tribe has literally broken ground on the Tribe s next phase of construction. The Wichita Tribe announced its plans for further construction in its EA, and the EA constitutes sufficient grounds, under NEPA, to bring suit. iii. Ordering Consultation Would Constitute Effective Relief. Requiring the Wichita Tribe to engage in good faith consultation would constitute effective relief. The Wichita Tribe baldly asserts that this is no remedy at all. Aplee. Br. 33. Quite the opposite, this is precisely the remedy that the NHPA contemplates. The implementing regulations make clear that the goal of 106 is to provide Tribes with a reasonable opportunity to identify its concerns about historic properties, [and] advise on the identification and evaluation of historic properties. 36 C.F.R. 800.2(c)(2)(ii)(A). Like the defendants in Airport Neighbors, if the District Court finds that the Wichita Tribe violated NEPA or NHPA, the Court could order that the History Center be closed or impose 6
Appellate Case: 18-6142 Document: 010110092916 Date Filed: 12/04/2018 Page: 12 restrictions on its operations until the Tribe complies with NEPA and consults with the Caddo Nation under NHPA. See 90 F.3d at 429. C. The District Court s Decision Should Not Be Upheld On Grounds The Court Did Not Consider. The Wichita Tribe asks this Court to uphold the District Court s decision on numerous grounds which the District Court did not consider (i.e., pleading under the Administrative Procedure Act ( APA ), 5 U.S.C. 701 et seq., indispensable parties, impermissible collateral attack, etc.). See Aplee. Br. 36-52; id. at 52 (quoting Medina v. City & Cty. of Denver, 960 F.2d 1493, 1495 n.1 (10th Cir. 1992)). For the reasons described below, none of the peripheral issues the Wichita Tribe raises on appeal justify affirming the District Court s decision on grounds the District Court did not consider. i. The Caddo Nation Adequately Pleaded Claims Under The APA. The Wichita Tribe asserts that neither of these statutes [NEPA and NHPA] afford Caddo a private right of action. Aplee. Br. 36. This, of course, is beside the point since the Caddo Nation s Amended Complaint plainly and clearly pleads the Nation s NEPA and NHPA claims through the APA and not as a private right of action. As to the sufficiency of the Caddo Nation s pleading, the Amended Complaint more than satisfies this Court s own standard, as this Court has held that 7
Appellate Case: 18-6142 Document: 010110092916 Date Filed: 12/04/2018 Page: 13 a plaintiff seeking judicial review pursuant to the APA must (i) identify some final agency action and (ii) demonstrate that its claims fall within the zone of interests protected by the statute forming the basis of its claims. Catron Cty. Bd. of Comm rs, N.M. v. U.S. Fish & Wildlife Serv., 75 F.3d 1429, 1434 (10th Cir. 1996) (quotation omitted). The Wichita Tribe has previously acknowledged that the Nation satisfied the first requirement, see generally Aplt. App. 0294; and as to the second, the entirety of the Caddo Nation s Amended Complaint sufficiently demonstrates that the Nation s claims fall within the zone of interests protected by NHPA and NEPA. The Caddo Nation, therefore, adequately pleaded its claims under the APA. 4 ii. The Wichita Tribe Waived Sovereign Immunity. As the District Court correctly concluded, the Wichita Tribe willfully waived its sovereignty immunity when the Tribe accepted the release of funds from the Department of Housing and Urban Development ( HUD ) for the History Center projects and assumed the responsibilities of the federal agency as the Responsible Entity under 24 C.F.R. 58.2. See Caddo Nation of Okla. v. Wichita 4 The Amended Complaint is replete with allegations that allege the Wichita Tribe s actions were arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law. See, eg., Aplt. App. 0238-239, 0262, 0266, 0272, 0275-277, 0279-281, 0290-291. 8
Appellate Case: 18-6142 Document: 010110092916 Date Filed: 12/04/2018 Page: 14 and Affiliated Tribes, No. CIV-16-0559-HE, 2018 WL 3354882, at *1-2 (W.D. Okla. July 9, 2018); Aplt. App. 0389. President Parton signed the Wichita Tribe s EA, stating that: The Wichita and Affiliated Tribes certifies to HUD that Terri Parton, in her capacity as President consents to accept the jurisdiction of the Federal Courts if an action is brought to enforce responsibilities in relation to the environmental review process and that these responsibilities have been satisfied. Aplt. App. 0607. The Wichita Tribe fails to cite to any authority to support the proposition that once a Tribe assumes a federal agency s duties and responsibilities under NEPA, it can later retract its waiver of immunity. There are none. By signing the EA, the Wichita Tribe consented to suits challenging the legality of the Tribe s EA. iii. The Delaware Nation Is Not An Indispensable Party To assert that this case cannot proceed without the Delaware Nation, the Wichita Tribe erroneously conflates land ownership with the Caddo Nation s rights under NEPA and NHPA and relies on an inapplicable holding in Wichita & Affiliated Tribes of Okla. v. Hodel, 788 F.2d 765, 774 (D.C. Cir. 1986). See Aplee. Br. 44. However, in contrast to the holding in Hodel, which dealt with distribution of income derived from the jointly owned lands, the Caddo Nation s claims relate to Caddo Nation s unique right to protect Caddo remains and cultural patrimony under NHPA and NEPA. The fact that the lands are owned by three Tribes does 9
Appellate Case: 18-6142 Document: 010110092916 Date Filed: 12/04/2018 Page: 15 not alter this Court s analysis under either NEPA or NHPA, as the duties under these two statutes are not tethered to specific land ownership, but rather, are predicated on the occurrence of a major federal action (NEPA), 40 C.F.R. 1508.18, or federal undertaking (NHPA), 36 C.F.R. 800.16(y). Accordingly, the Delaware Nation is not indispensable to the litigation. iv. HUD Is Not An Indispensable Party. HUD is not an indispensable party, and the Wichita Tribe has not cited a single precedent or authority concluding that HUD is answerable to a lawsuit when a Responsible Entity has assumed HUD s duties under federal law. There are none. Instead, once HUD has delegated its authority to a Responsible Entity, HUD completely detaches itself from disputes focusing on the [local government s] compliance with NEPA, warning in its regulations that [p]ersons and agencies seeking redress in relation to environmental reviews... shall deal with the recipient and not with HUD. Heeren v. City of Jamestown, Ky., 817 F. Supp. 1374, 1376 (W.D. Ky. 1992), aff d, 39 F.3d 628 (6th Cir. 1994) (quoting 24 C.F.R. 58.77(b)) (emphasis added). Indeed, the [Responsible Entity], rather than HUD, is responsible for performing the proper substantive historic review. Soc y Hill Towers Owners Ass n v. Rendell, 20 F. Supp. 2d 855, 872 (E.D. Pa. 1998), aff d, 210 F.3d 168 (3d Cir. 2000). 10
Appellate Case: 18-6142 Document: 010110092916 Date Filed: 12/04/2018 Page: 16 Finally, the Wichita Tribe erroneously asserts that Congress did not intend to transfer such duties to, and waive the sovereign immunity of, an Indian Tribe because Indian tribes are not included in the definition of local government found within 36 C.F.R. 800.2. Aplee. Br. 42. The exclusion of Tribes from this definition of local government is irrelevant, however, because the Tribe s assumption of HUD s duties and concomitant waiver of sovereign immunity stems from the Tribe s assuming the role of Responsible Entity under 24 C.F.R. 58.13(a), not 36 C.F.R. 800.2. Notably, 58.2(7)(ii) includes Indian Tribe within the definition of Responsible Entity. v. The Caddo Nation s Suit Is Not An Impermissible Collateral Attack. The Caddo Nation has not asked this Court, or the District Court, to make any rulings on the ownership status of the WCD lands or on the agency decisions currently pending on appeal before the IBIA. The actual status of the contested lands is only relevant in the current litigation in so far as it refutes the Wichita Tribe s defense that the Tribe s alleged exclusive authority over this parcel of WCD lands alleviates the Tribe of its duty to engage in 106 consultation with the Caddo Nation. 11
Appellate Case: 18-6142 Document: 010110092916 Date Filed: 12/04/2018 Page: 17 IV. CONCLUSION Respectfully submitted this 4th day of December, 2018. s/mary Kathryn Nagle Mary Kathryn Nagle, NYB No. 4965489 Wilson Pipestem, OBA No. 16877 Abi Fain, OBA No. 31370 Pipestem Law, P.C. 320 S. Boston Ave., Suite 1705 Tulsa, OK 74103 918-936-4705 (Office) mknagle@pipestemlaw.com wkpipestem@pipestemlaw.com Attorneys for Plaintiff-Appellant Caddo Nation of Oklahoma 12
Appellate Case: 18-6142 Document: 010110092916 Date Filed: 12/04/2018 Page: 18 CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7) because, excluding the parts of the brief exempted by Fed. R. App. P. 32(f) and 10th Cir. Local Rule 32(b), the brief contains 2,572 words. I relied upon my word processor to obtain the count and it is Microsoft Word 2013. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Microsoft Office Word 2013 in Times New Roman, 14 point font. Date: December 4, 2018 s/mary Kathryn Nagle Mary Kathryn Nagle 13
Appellate Case: 18-6142 Document: 010110092916 Date Filed: 12/04/2018 Page: 19 CERTIFICATE OF DIGITAL SUBMISSION AND PRIVACY REDACTIONS I certify that: (1) all required privacy redactions have been made in accordance with Fed. R. App. P. 25(a)(5) and 10th Cir. Rule 25.5; (2) every document submitted in digital form or scanned PDF format is an exact copy of the hard copy filed with the Clerk when called for; and (3) the digital submissions have been scanned for viruses with the most recent version of a commercial virus scanning program, Norton Security v. 6.4, last updated December 4, 2018, and according to the program, are free from viruses. Dated this 4th day of December, 2018. s/mary Kathryn Nagle Mary Kathryn Nagle 14
Appellate Case: 18-6142 Document: 010110092916 Date Filed: 12/04/2018 Page: 20 CERTIFICATE OF SERVICE I, Mary Kathryn Nagle, hereby certify that on this 4th day of December, 2018, I electronically transmitted the foregoing document to the Clerk of Court using the ECF system. Based on electronic records currently on file, the Clerk of Court will transmit a Notice of Docket Activity to the following ECF registrants: William R. Norman, OBA No. 14919 K. Kirke Kickingbird, OBA No. 5003 Michael D. McMahan, OBA No. 17317 Randi Dawn Gardner Hardin, OBA No. 32416 Hobbs, Straus, Dean & Walker, LLP 101 Park Ave., Suite 700 Oklahoma City, Oklahoma 73102 Telephone: 405-602-9425 Fax: 405-602-9426 WNorman@hobbsstraus.com KKickingbird@hobbsstraus.com MMcMahan@hobbsstraus.com RHardin@hobbsstraus.com Attorneys for Defendant-Appellees Wichita and Affiliated Tribes s/mary Kathryn Nagle Mary Kathryn Nagle 15