Case :-cv-00-lrh-wgc Document Filed // Page of 0 Laura K. Granier, Esq. (NSB ) laura.granier@dgslaw.com 0 W. Liberty Street, Suite 0 Reno, Nevada 0 () -/ () 0- (Tel./Fax) Attorneys for Carlin Resources, LLC UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 0 BATTLE MOUNTAIN BAND of the TE-MOAK TRIBE of WESTERN SHOSHONE INDIANS, v. Plaintiff, UNITED STATES BUREAU OF LAND MANAGEMENT, and JILL C. SILVEY, in official capacity as Bureau of Land Management Elko District Manager, and Defendants; CARLIN RESOURCES, LLC Defendant-Intervenor and Counter- Claimant. Case No. :-cv-0-lrh-wgc CARLIN RESOURCES, LLC S POINTS AND AUTHORITIES IN OPPOSITION TO THE PLAINTIFF S MOTION TO DISMISS COUNTERCLAIM 0 Carlin Resources, LLC ( Carlin ), submits these points and authorities in opposition to Plaintiff Battle Mountain Band of the Te-Moak Tribe of Western Shoshone Indians ( Band ) Motion to Dismiss Counterclaims and the Band s Memorandum in Support of Motion to Dismiss Counterclaim (ECF Nos. -, together Motion ). Introduction Carlin s Counterclaim fits squarely within the scope of issues necessary to decide the Band s claims for relief and seeks a declaration regarding the rights and relations among Carlin 0 W. LIBERTY ST., STE. 0 RENO, NEVADA 0 () - Citations to the Motion in this brief refer to the Memorandum in Support of Motion to Dismiss Counterclaim..
Case :-cv-00-lrh-wgc Document Filed // Page of 0 0 0 0 W. LIBERTY ST., STE. 0 RENO, NEVADA 0 () - and the Band the BLM need not be named a counterclaim defendant in order for Carlin to obtain the relief requested in the Counterclaim. The Band s Motion should be denied because () the waiver-by-litigation doctrine defeats the Band s immunity argument and () the Band s Rule (b)() argument incorrectly characterizes Carlin s Counterclaim as a request for relief against the BLM. The Band initiated this litigation asserting violations of federal statutes and demands for declaratory and injunctive relief. Complaint, Prayer for Relief -. The fundamental premise of the Band s case is that the BLM validly designated particular sites within the Hollister Mine ( Project ) to be Traditional Cultural Properties or TCPs in a letter dated April, 0 ( April 0 Letter ). Complaint - (the Band attached a copy of this letter as Exhibit to its Complaint). From this premise, the Band argues that the Project must be modified to protect the newly designated TCPs. Complaint -; id. at Prayer for Relief. The Band s Complaint necessarily places the validity and legal consequence of the April 0 Letter at issue in this litigation. Carlin disagrees with the Band s assertion that the April 0 Letter has any legal consequence on the Project or the Record of Decision issued on March, 0 approving plans for the Project ( ROD ). Carlin filed an answer denying the Band s allegations and asserting affirmative defenses to this effect. Carlin also filed the Counterclaim, which asserts that the April 0 Letter has no legal consequence on the Project, and requests a declaratory judgment binding on the Band to that effect. In its simplest form, the Band s Complaint says the April 0 Letter means one thing, and Carlin s Counterclaim says the April 0 Letter means something different. Because the Defendants United States Bureau of Land Management and Jill C. Silvey are referred to herein as BLM. of 0
Case :-cv-00-lrh-wgc Document Filed // Page of 0 0 0 0 W. LIBERTY ST., STE. 0 RENO, NEVADA 0 () - Counterclaim fits squarely within the scope of issues raised by the Band s Complaint, the Band has waived sovereign immunity for the Counterclaim. Further, the Band s Rule argument fails because Carlin can obtain the complete relief requested in its Counterclaim without naming additional parties, the Counterclaim will not impede the ability of any nonparty to protect its rights, and no party to the Counterclaim will face the risk of inconsistent obligations. The Counterclaim seeks a simple declaration that, as between Carlin and the Band, the April 0 Letter has no consequence for the Project or the ROD. No other party is necessary for this relief, but even if BLM were a necessary party, it already is present in the case, responding to the pertinent issues as raised by the Band and, if the Court deems necessary, Carlin should be granted leave to amend to add cross claims against the BLM on these issues. Argument I. The Band Waived Sovereign Immunity to the Counterclaim. Under the waiver-by-litigation doctrine, a sovereign like the Band waives immunity to a counterclaim based on the same issues put before the Court by the sovereign. By filing this lawsuit the Band consented to the Court s resolution of the issues raised in the Complaint, including the risk of being bound by an adverse determination. McClendon v. United States, F.d, 0 (th Cir. ) ( Initiation of a lawsuit necessarily establishes consent to the court s adjudication of the merits of that particular controversy. ); see also United States v. Oregon, F.d 00, 0 (th Cir. ) ( [T]he Tribe assumed the risk that its position would not be accepted, and that the Tribe itself would be bound by an order it deemed adverse. ). The scope of the Tribe s waiver-by-litigation extends to all of the issues necessary to decide the Tribe s lawsuit. Tohono O'odham Nation v. Ducey, No. CV--0-PHX-DGC, 0 WL, at * (D. Ariz. Mar. 0, 0) (quoting McClendon, F.d at 0). In of 0
Case :-cv-00-lrh-wgc Document Filed // Page of 0 0 0 0 W. LIBERTY ST., STE. 0 RENO, NEVADA 0 () - other words, the Band has consented to the Court s resolution of all controversies necessary to resolve its Complaint. In its Complaint, the Band asserts that the legal consequences of the BLM s April 0 Letter are that, among other things, (i) the BLM must engage in additional work under the Programmatic Agreement to evaluate the effects of the already-approved Project on sites designated as TCPs in the April 0 letter; and (ii) the currently-approved plans for the Project must be modified to accommodate the designation made in the April 0 Letter. The validity and legal consequence of the decisions expressed in the April 0 are issues necessary to resolve the Band s Complaint. Thus, the Band has consented to the Court s power to decide whether the April 0 Letter carries these legal consequences advanced by the Band. One defense to the Band s claim is that the decisions in the April 0 Letter cannot be applied in the manner the Band asserts. Carlin s Counterclaim asserts reciprocal allegations related to the April 0 Letter. Carlin s Counterclaim is that the April 0 Letter carries no legal consequence on the Project or the ROD that approved the plan for the Project. The following table shows that the entire scope of Carlin s Counterclaim fits within the issues necessary to resolve the Band s Complaint: Carlin s Requests for Declaratory Judgment Declare that the BLM s [April 0 Letter] has no impact on the ROD or Project; Counterclaim, Prayer for Relief. Issues Necessary to Resolve the Band s Complaint The Band asserts that the April 0 Letter (Exhibit to its Complaint) is valid and impacts obligations contained in the ROD and Project, Complaint, -0,, -, -. The Band seeks declaratory judgment that the BLM has failed to complete the NHPA process related to the Power Line and the TCPs identified in the April 0 Letter. Complaint, Prayer for Relief ; see also id. (request for declaratory judgment that the BLM violated the NHPA and APA premised As previously noted, the Power Line was fully analyzed in the EIS and approved in the ROD which was signed in 0. of 0
Case :-cv-00-lrh-wgc Document Filed // Page of 0 0 0 0 W. LIBERTY ST., STE. 0 RENO, NEVADA 0 () - Declare that the BLM has no authority to require avoidance or mitigation measures in relation to the [TCPs identified in the April 0 Letter]. Counterclaim, Prayer for Relief. The Band s attempt to challenge the ROD by relying on the April 0 Letter is too late, Counterclaim -, so Carlin seeks a declaration that the Band has waived its right to appeal or otherwise seek judicial review of the ROD. Counterclaim, Prayer for Relief. Declare that the ROD is valid and final, and that Carlin may proceed with the Project pursuant to the terms of the ROD, including construction of the Power Line. Counterclaim, Prayer for Relief. on TCP identified in April 0 Letter). The Band asserts that the BLM must follow up on the April 0 Letter by requiring additional avoidance and mitigation measures. Complaint ( the mine operator can reasonably avoid adverse effects by burying the Power Line. ; see id, -. Further, the Band asks the Court to [e]nter declaratory judgment that to comply with the NHPA, the Power Line must be buried in the existing road which the Band has put forward as a reasonable mitigation alternative. Complaint, Prayer for Relief ; see also id - (seeking permanent injunctions premised on the Band s assertions of BLM s authority to require avoidance or mitigation measures triggered by the April 0 Letter). The Band asserts that it validly raised the issues underlying the April 0 Letter and that the decisions in the April 0 Letter are valid. Complaint -, -, -. The Band asks for a declaratory judgment that construction of the Power Line as currently planned violates the NHPA. Complaint, Prayer for Relief. This request necessarily asks the Court to review the ROD in light of the April 0 Letter. The Band argues that the NHPA prohibits Carlin from proceeding with the Project and Power Line because of determinations made in the April 0 Letter. Complaint ( The Band objects to construction or operation of the Power Line as currently planned. ); see also id. -, -. Further, the Band asks the Court to [e]nter declaratory judgment that to comply with the NHPA, the Power Line must be buried in the existing road which the Band has put forward as a reasonable mitigation alternative. Complaint, Prayer for Relief. This claim makes no sense in part because mitigation alternatives are only considered prior to a BLM decision to issue a ROD which is unquestionably a final decision. Thus, because the matters raised in the Counterclaim are identical to matters necessary to resolve the Band s Complaint, the Band cannot assert sovereign immunity as a defense to the Counterclaim. See, e.g., Tohono O'odham Nation, 0 WL, at * (same analysis). of 0
Case :-cv-00-lrh-wgc Document Filed // Page of 0 0 0 0 W. LIBERTY ST., STE. 0 RENO, NEVADA 0 () - Finally, the Band cites no authority for its argument that Carlin s status as an intervenor somehow removes Carlin s Counterclaim from the scope of the Band s waiver. Motion at. The waiver-by-litigation doctrine turns on the issues advanced by the sovereign in litigation, not the procedural posture of parties. The doctrine is based on the concept of a sovereign s consent to be bound by a Court s determination of particular controversies. Tohono O odham Nation, 0 WL, at *. Nothing turns on whether a defendant was named as a defendant in the Complaint or intervened as of right under Rule (a). This makes sense because, once permitted to intervene, intervening parties are treated no differently from an original party. Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, C Fed. Prac. & Proc. Civ. 0 (d ed.) ( Unless conditions have been imposed, the intervenor is treated as if the intervenor were an original party and has equal standing with the original parties. ). The Band consented to the Court s power to resolve the issues raised in the Counterclaim regardless of how Carlin joined this action. Accordingly, the Band has consented to adjudication of the issues raised in the Counterclaim and therefore waived sovereign immunity from the Counterclaim. II. Carlin States a Claim for Relief. The Band also argues that its Counterclaim should be dismissed pursuant to Fed. R. Civ. P. (b)(-) because Carlin did not assert a claim against the BLM or other tribes. Motion at. This argument misconstrues the relief sought by Carlin and has no legal support. Carlin filed the Counterclaim to obtain a binding judgment against the Band as to the legal significance of the April 0 Letter and the finality of the ROD approving Carlin s plans for the Project. The purpose of the Counterclaim is to put a stop to the Band s improper continued attempts to undermine the ROD and interfere with Carlin s vested property rights. Counterclaim. Carlin can obtain this relief without naming any additional parties. of 0
Case :-cv-00-lrh-wgc Document Filed // Page of 0 0 0 0 W. LIBERTY ST., STE. 0 RENO, NEVADA 0 () - There are three different ways a nonparty may be necessary under Rule (a): First, a person is necessary if, in his absence, the court cannot accord complete relief among existing parties. See Fed. R. Civ. P. (a)()(a). Second, a person is necessary if he has an interest in the action and resolving the action in his absence may as a practical matter impair or impede his ability to protect that interest. See Fed. R. Civ. P. (a)()(b)(i). Third, a person is necessary if he has an interest in the action and resolving the action in his absence may leave an existing party subject to inconsistent obligations because of that interest. See Fed. R. Civ. P. (a)()(b)(ii). Salt River Project Agr. Imp. & Power Dist. v. Lee, F.d, (th Cir. 0). The Band does not identify which of these bases it relies upon to argue nonparties are necessary here, but simply offers its ipse dixit assertion that the BLM and other tribes are simply indispensable. Motion at. The BLM and other tribes are not necessary under any of the three parts of Rule (a): First, Carlin seeks a declaratory judgment that binds the Band. The Band s speculation that other tribes may engage in a similar pattern of obstruction is irrelevant because a judicial declaration binding the Band is all that Carlin requests. Salt River, F.d at 0 (the possibility that nonparties may violate the law in the future does not mean that complete relief is not possible for the plaintiffs, who seek to enjoin only the named defendants. If in the future the plaintiffs believe that other officials are acting in violation of federal law, they may bring another action against those officials. ). The Band cannot manufacture a Rule defense by trying to enlarge the scope of Carlin s requested relief to other parties. As in Salt River, if the BLM or other nonparties attempt to modify the Project by pointing to the April 0 Letter, Carlin can bring another action against these parties. Because the Court can accord the complete relief sought by Carlin, Rule (a)()(a) does not apply. of 0
Case :-cv-00-lrh-wgc Document Filed // Page of 0 0 0 0 W. LIBERTY ST., STE. 0 RENO, NEVADA 0 () - Second, Rule (a)()(b)(i) does not apply because bringing the Counterclaim will not impair or impede the ability of any nonparty to protect the nonparty interests identified by the Band. Motion at. An absent party with an interest in the action is not a necessary party under Rule (a) if the absent party is adequately represented in the suit. Salt River, F.d at 0. The Band does not explain how the interests of the absent parties identified by the Band (other tribes) in the April 0 Letter, the 0 ROD, or the Project depart from the interests of the Band. The Band certainly does not argue that it is not adequately represented in this lawsuit. Accordingly, Rule (a)()(b)(i) does not apply. Id. at ( [B]ecause the officials adequately represent the Navajo Nation s interests here, the district court erred in holding that the tribe was a necessary party under Rule (a)()(b)(i). ). The BLM already is participating in this action as the initially named Defendant who is defending against and disputes the Band s claims. Thus, the BLM is not unrepresented or absent from the proceedings. Third, there is no risk of inconsistent obligations for any party or nonparty, and the Band identifies none. Because there is no risk of inconsistent obligations, there are no necessary nonparties under Rule (a)()(b)(ii). The Band s own lawsuit undermines the Rule argument. The Counterclaim is based on the same issues necessary to resolve the Band s lawsuit. If nonparties are necessary to resolve Carlin s Counterclaim, then the same nonparties would be necessary to resolve the Band s lawsuit. The Band cannot have it both ways. Finally, although not relevant to the Rule argument, the Band s casual suggestion that Carlin is colluding with the BLM betrays the Motion s lack of credibility and is not correct. Motion at -. Carlin recently sought administrative review of the BLM s improper attempt to modify the plans approved under the ROD based on its untimely designation of TCPs. The Interior Board of Land Appeals dismissed the appeal as premature. Carlin will timely exhaust its of 0
Case :-cv-00-lrh-wgc Document Filed // Page of 0 0 administrative remedies before filing a claim against the BLM for judicial review of the BLM s action something the Band did not do before filing this lawsuit but in no way is Carlin colluding with the BLM. In short, Carlin can obtain a final declaration that is binding against the Band that the ROD is final without naming other parties. CONCLUSION For the reasons above, the Motion should be denied in its entirety. DATED this th day of November 0. By: /s/ Laura K. Granier Laura K. Granier, Esq. 0 W. Liberty Street, Suite 0 Reno, Nevada 0 () 0- (Telephone) () - (Fax) Attorneys for Defendant Carlin Resources, LLC 0 0 W. LIBERTY ST., STE. 0 RENO, NEVADA 0 () - of 0
Case :-cv-00-lrh-wgc Document Filed // Page 0 of 0 CERTIFICATE OF SERVICE I hereby certify that on November, 0, a true and correct copy of the foregoing document was served via the court s electronic service system, addressed to the following: 0 0 Jeffrey S. Rasmussen 00 Plaza Drive Louisville, CO 00 Rollie Wilson Fredericks Peebles & Morgan LLP 0 th Street NW, Suite 00 Washington, DC 000 Scott R. Daniel, Esq. THE DANIEL FIRM 00 S. Virginia St., th Floor Reno, Nevada 0 Gregory W. Addington Assistant United States Attorney 00 W. Liberty Street, Suite 00 Reno, NV 0 Peter Kryn Dykema Adam M. Bean Kristofor Swanson U.S. Department of Justice Environment and Natural Resources Division Natural Resources Section P.O. Box Washington, D.C. 00-0 jrasmussen@ndnlaw.com RWilson@ndnlaw.com scott.daniel@danielfirm.com greg.addington@usdoj.gov Peter.dykema@usdoj.gov Adam.Bean@usdoj.gov Kristofor.Swanson@usdoj.gov /s/ Jeanette Sparks JEANETTE SPARKS 0 W. LIBERTY ST., STE. 0 RENO, NEVADA 0 () - 0 of 0