IGNACIA S. MORENO Assistant Attorney General · Mishewal Wappo Tribe of Alexander Valley v. Jewell,...

Mishewal Wappo Tribe of Alexander Valley v. Jewell, No. 5:09-cv-02502-EJD Federal Defendants’ Motion for Summary Judgment and Memorandum of Law in Support Thereof

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IGNACIA S. MORENO Assistant Attorney General Environment & Natural Resources Division United States Department of Justice DAVID B. GLAZER (D.C. 400966) Natural Resources Section Environment & Natural Resources Division United States Department of Justice 301 Howard Street, Suite 1050 San Francisco, California 94105 TEL: (415) 744–6491 FAX: (415) 744-6476 e-mail: [email protected] Attorneys for Federal Defendant

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

MISHEWAL WAPPO TRIBE OF ALEXANDER VALLEY, Plaintiff, v. SALLY JEWELL, et al., Defendants.

No. 5:09-cv-02502-EJD FEDERAL DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND MEMO-RANDUM OF LAW IN SUPPORT THEREOF Date: July 25, 2013 Time: 1:30 p.m. Courtroom No. 4, Fifth Floor Hon. Edward J. Davila

Case5:09-cv-02502-EJD Document185 Filed05/31/13 Page1 of 32

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TABLE OF CONTENTS

I. OVERVIEW ........................................................................................................................... 1

A. Issues to be Decided................................................................................................................ 1

1. Whether Plaintiff’s claims are barred by the statute of limitations. ....................................... 1

2. Whether Plaintiff’s claims are barred by laches. .................................................................... 1

3. Whether Plaintiff’s claims fail for other reasons. ................................................................... 1

4. Whether the remedies Plaintiff seeks can be granted. ............................................................ 1

B. Factual Background ................................................................................................................ 1

1. Congressional establishment of the California Rancherias .................................................... 1

2. Congressional termination of the California Rancherias ........................................................ 2

3. Litigation challenging Rancheria terminations ....................................................................... 4

4. Plaintiff’s 2009 request for administrative recognition .......................................................... 5

5. Plaintiff’s Complaint ............................................................................................................... 5

II. ARGUMENT .......................................................................................................................... 5

A. Plaintiff’s Claims are Barred by the Statute of Limitations .................................................... 5

B. Plaintiff’s Claims are Barred by Laches ................................................................................. 9

C. Even if Not Time-barred, Plaintiff’s Claims are Invalid ...................................................... 10

1. Plaintiff’s First Cause of Action for “Breach of Fiduciary Duty” ........................................ 10

2. Plaintiff’s Second Cause of Action for “Agency Action Unlawfully Withheld or

Unreasonably Delayed” ........................................................................................................ 13

3. Plaintiff’s Third Cause of Action for “Failure to Conclude a Matter Within a

Reasonable Time” ................................................................................................................. 15

4. Plaintiff’s Fourth Cause of Action for “Arbitrary and Capricious Agency Action” ............ 16

5. Plaintiff’s Fifth Cause of Action for “Violation of Possessory Rights” ............................... 16

D. The Remedies Plaintiff Seeks Cannot be Granted ................................................................ 17

1. Restoration of the Alexander Valley Rancheria would not benefit Plaintiff ........................ 18

2. The Court cannot order that land be taken in trust or considered “Indian Lands” or

“Restored Lands” .................................................................................................................. 19


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III. CONCLUSION ..................................................................................................................... 22


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TABLE OF AUTHORITIES

CASES Balistreri v. Pacifica Police Department,

901 F.2d 696 (9th Cir. 1990) ...............................................................................................................15 Clark v. Time Warner Cable,

523 F.3d 1110 (9th Cir. 2008) .............................................................................................................21 Cline v. Brusett,

661 F.2d 108 (9th Cir.1981) ..................................................................................................................6 Conservation Force v. Salazar,

646 F.3d 1240 (9th Cir. 2011) .............................................................................................................15 Ctr. for Biological Diversity v. Veneman,

394 F.3d 1108 (9th Cir. 2005) .............................................................................................................13 Darby v. Cisneros,

509 U.S. 137 (1993) .............................................................................................................................14 Duncan v. Andrus,

517 F. Supp. 1 (N.D. Cal. 1977) ............................................................................................................2 Felter v. Kempthorne,

473 F.3d 1255 (D.C. Cir. 2007) .........................................................................................................8, 9 Friends of Sierra R.R., Inc. v. ICC,

881 F.2d 663 (9th Cir. 1989) .................................................................................................................7 Gibson v. United States,

781 F.2d 1334 (9th Cir.1986) ................................................................................................................6 Government of Guam v. United States,

744 F.2d 699 (9th Cir. 1984) .................................................................................................................7 Grimes v. City and Cnty. of San Francisco,

951 F.2d 236 (9th Cir. 1991) .................................................................................................................9 Gros Ventre Tribe v. United States,

344 F. Supp. 2d 1221 (D. Mont. 2004) ..................................................................................................9 Gros Ventre Tribe v. United States,

469 F.3d 801 (9th Cir. 2006) ...............................................................................................................12 Hall v. Reg’l Transp. Comm’n, 362 F. App’x. 694 (9th Cir. 2010) .........................................................................................................9 Hells Canyon Preservation Council v. U.S. Forest Serv.,

593 F.3d 923 (9th Cir. 2010) .................................................................................................................6 Hopland Band of Pomo Indians v. United States,

855 F.2d 1573 (Fed. Cir. 1988)..............................................................................................................7


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Humphreys v. United States,

272 F.2d 411 (9th Cir. 1959) .................................................................................................................8 Internet Specialties West, Inc. v. Milon-Digiorgio Enterprises,

559 F.3d 985 (9th Cir. 2009) ...............................................................................................................10 Irwin v. Department of Veterans Affairs,

498 U.S. 89 (1990) .................................................................................................................................6 Jarrow Formulas, Inc. v. Nutrition Now, Inc.,

304 F.3d 829 (9th Cir. 2002) ...........................................................................................................9, 10

Livingston v. United States, No. CR-F-09-273-LJO, 2010 WL 3463887 (E.D. Cal. Sep. 1, 2010) ...................................................3

Marceau v. Blackfeet Housing Authority,

540 F.3d 916 (9th Cir. 2008) ...............................................................................................................12 Menominee Tribe of Indians v. United States,

726 F.2d 718 (Fed. Cir. 1984)............................................................................................................6, 7 Morongo Band of Mission Indians v. F.A.A.,

161 F.3d 569 (9th Cir. 1998) ...............................................................................................................12 Norton v. Southern Utah Wilderness Alliance,

542 U.S. 55 (2004) .........................................................................................................................13, 16 Okanogan Highlands Alliance v. Williams,

236 F.3d 468 (9th Cir. 2000) ...............................................................................................................12 Redding Rancheria v. Salazar,

881 F. Supp. 2d 1104 (N.D. Cal. 2012) .........................................................................................20, 21 Reed v. Lockheed Aircraft Corp.,

613 F.2d 757 (9th Cir. 1980) .................................................................................................................9 Samish Indian Nation v. United States,

419 F.3d 1355 (Fed. Cir. 2005)............................................................................................................14 San Carlos Apache Tribe v. United States,

639 F.3d 1346 (Fed. Cir. 2011)..............................................................................................................7 San Luis Unit Food Producers v. United States,

772 F. Supp. 2d 1210 (E.D. Cal. 2011)..................................................................................................9 Shiny Rock Mining Corp. v. United States,

906 F.2d 1362 (9th Cir. 1990) ...............................................................................................................7 Skokomish Indian Tribe v. United States,

410 F.3d 506 (9th Cir. 2005) ...............................................................................................................17 Solid Waste Agency, Inc. v. United States Army Corps of Eng’rs,

191 F.3d 845 (7th Cir. 1999) .................................................................................................................6


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United States v. Dalm,

494 U.S. 596 (1990) ...............................................................................................................................6 United States v. Idaho, ex rel. Director, Idaho Department of Water Resources,

508 U.S. 1 (1993) ...................................................................................................................................5 United States v. Jicarilla Apache Nation,

___U.S.___, 131 S. Ct. 2313 (2011) ....................................................................................................11 United States v. Mitchell,

463 U.S. 206 (1983) .............................................................................................................................11 United States v. Navajo Nation,

556 U.S. 287 (2009) .............................................................................................................................17 United States v. White Mountain Apache Tribe,

537 U.S. 465 (2003) .............................................................................................................................12 White Mountain Apache Tribe v. Hodel,

840 F.2d 675 (9th Cir. 1988) .........................................................................................................14, 16 Williams v. Gover,

490 F.3d 785 (9th Cir. 2007) .........................................................................................................18, 19 Wilton Miwok Rancheria v. Salazar,

Nos. C-07-02681-JF-PVT, C-07-05706-JF, 2010 WL 693420 (N.D. Cal. Feb. 23, 2010) ...................8

CONSTITUTION U.S. Const., art. IV, § 3, cl. 2 .....................................................................................................................11

STATUTES

Act of June 21, 1906, Pub. L. No. 59-258, 34 Stat. 325 ..............................................................................2 Act of August 18, 1958, Pub. L. No. 85-671, 72 Stat. 619 ..........................................................2, 3, 11, 18 Administrative Procedure Act, 5 U.S.C. §§ 701–706 ..............................................................................................................................5 5 U.S.C. § 551(13) ...............................................................................................................................13 5 U.S.C. § 552(b) .................................................................................................................................15 5 U.S.C. § 555(b) .................................................................................................................................15 5 U.S.C. § 704 .....................................................................................................................................14 5 U.S.C. § 706(1) ...........................................................................................................................13, 16 5 U.S.C. § 706(2) ...........................................................................................................................13, 16 Indian Gaming Regulatory Act, 25 U.S.C. § 2703(4) .............................................................................................................................20 25 U.S.C. § 2719 ..................................................................................................................................20 25 U.S.C. § 2719(a) .............................................................................................................................20 25 U.S.C. § 2719(b) .............................................................................................................................20 25 U.S.C. § 2719(b)(1)(iii) ......................................................................................................17, 19, 20


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Indian Reorganization Act, 25 U.S.C. § 465 ..............................................................................................................................19, 22 25 U.S.C. § 467 ....................................................................................................................................19 25 U.S.C. § 479 ......................................................................................................................................5 Indian Tucker Act, 28 U.S.C. § 1505 ..................................................................................................................................17 Federally Recognized Indian Tribe List Act of 1994, Pub. L. No. 103-454, 108 Stat. 4791, 25 U.S.C. §§ 479a et seq ....................................................................................................................6, 7 25 U.S.C. § 479a-1(a) ..........................................................................................................................14 18 U.S.C. § 1151 ............................................................................................................................17, 19, 22 28 U.S.C. § 2401(a) ...........................................................................................................................6, 9, 10

REGULATIONS 25 C.F.R. § 83.11 .......................................................................................................................................14 25 C.F.R. § 151.9 .......................................................................................................................................19 25 C.F.R. § 151.10 .....................................................................................................................................19 25 C.F.R. § 151.11 .....................................................................................................................................19 25 C.F.R. § 151.12 .....................................................................................................................................19 25 C.F.R. §§ 242.3–242.6 ..........................................................................................................................11 25 C.F.R. § 242.4 .......................................................................................................................................13 25 C.F.R. § 292 ..........................................................................................................................................20 25 C.F.R. §§ 292.7–292.12 ..................................................................................................................20, 21 25 C.F.R. § 292.11 .....................................................................................................................................20 25 C.F.R. § 292.12 .....................................................................................................................................20

RULES

Fed. R. Civ. P. 12(b)(6)..............................................................................................................................15 Fed. R. Civ. P. 12(h)(2)(C) ........................................................................................................................15 Fed. R. Civ. P. 25(d) ....................................................................................................................................1

LEGISLATIVE MATERIALS

H.R. Rep. No. 85-1129 (1957) ...........................................................................................................2, 3, 11 S. Rep. No. 85-1874 (1958) .......................................................................................................................11


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MISCELLANEOUS

24 Fed. Reg. 4652 (Jun. 9, 1959) ...............................................................................................................11 26 Fed. Reg. 6875 (Aug. 1, 1961)................................................................................................................4 44 Fed. Reg. 7235 (February 6, 1979) .........................................................................................................7 Attorney General’s Manual on the Administrative Procedure Act 108 (1947) .........................................13 1-3 Cohen's Handbook of Federal Indian Law § 3.04[1] (Matthew Bender 2012) ...................................22 Solicitor’s Opinion, Rancheria Act of August 18, 1958, August 1, 1960, II Op. Sol. on Indian

Affairs 1882 (U.S.D.I. 1979) .................................................................................................................2


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In accordance with the Court’s Order of February 6, 2013, ECF No. 184, Federal Defendants

Sally Jewell, Secretary of the Interior, and Kevin K. Washburn, Assistant Secretary of the Interior for

Indian Affairs,1 submit this cross-motion for summary judgment and memorandum of law in support

thereof, together with the accompanying Declaration of David B. Glazer (“Glazer Decl.”). Federal

Defendants further rely on the Administrative Record in this matter, which has been previously submit-

ted in three parts.2

I. OVERVIEW

The Court has set the motion for hearing on July 25, 2013, at 1:30 p.m. ECF No.

184, at 2.

A. Issues to be Decided

1. Whether Plaintiff’s claims are barred by the statute of limitations.

2. Whether Plaintiff’s claims are barred by laches.

3. Whether Plaintiff’s claims fail for other reasons.

4. Whether the remedies Plaintiff seeks can be granted.

B. Factual Background

The following recitation of facts is based upon the allegations of Plaintiff’s First Amended

Complaint, ECF No. 49; the Administrative Record filed in this matter, ECF No. 59, 168 & 174;

congressional documents, and other public records.

1. Congressional establishment of the California Rancherias

In 1906, Congress appropriated funds for the Secretary of the Interior (“Secretary”) to purchase

land and water rights for the use of Indians in California who lived outside of reservations or who lived

1 Pursuant to Fed. R. Civ. P. 25(d), Ms. Jewell is substituted for Kenneth L. Salazar, and Mr. Washburn is substituted for Larry Echo Hawk and Donald E. Laverdure. 2 The documents comprising the first installment of the Administrative Record were filed through the Court’s ECF system on August 20, 2010, ECF No. 59. Those documents are cited as “AR __.” On April 20, 2012, a First Supplement to the Administrative Record was filed on computer disk, ECF No. 168. Those documents comprise the Bates range MWT-AVR-2012-000001–282. A Second Supple-ment to the Administrative Record, also on computer disk, was filed on October 23, 2012, ECF No. 174. Those documents follow with the Bates numbers MWT-AVR-2012-000283–627.



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on reservations that did not contain land suitable for cultivation. See Act of June 21, 1906, Pub. L. No.

59-258, 34 Stat. 325, 333.3

The use of Rancheria land by individual Indians was by assignment and required occupancy;

otherwise, the assignment would pass to another. Solicitor’s Opinion, Rancheria Act of August 18,

1958, August 1, 1960, II Op. Sol. on Indian Affairs 1882, 1883 (U.S.D.I. 1979) (“1960 Sol. Op.”).

Parcels of land, called Rancherias, were purchased under this authority, with

approximately 82 Rancherias eventually established throughout California. See Duncan v. Andrus,

517 F. Supp. 1, 2 (N.D. Cal. 1977). As alleged in Plaintiff’s First Amended Complaint, in 1908 and

1913 two parcels of land totaling 54 acres were purchased in the Alexander Valley of Sonoma County,

California, 1st Amd. Compl. ¶ 9, for the benefit of Indians who wished to live there.

4

The situation on the Alexander Valley Rancheria was typical of this population flux. While

dozens of individuals resided on the Rancheria during the 1940s, MWT-AVR-2012-000429–32; MWT-

AVR-2012-000453, by 1951 only one family and one non-Indian squatter lived there, MWT-AVR-

2012-000453. By the time of the termination, BIA was able to identify only two heads of household to

whom it could distribute the Rancheria property. MWT-AVR-2012-000461–62.

As

a result, occupation of a Rancheria by individual Indians remained uncertain and in flux. Id.

2. Congressional termination of the California Rancherias

In 1958, Congress enacted the California Rancheria Act (“CRA”). Act of August 18, 1958, Pub.

L. No. 85-671, 72 Stat. 619, amended by the Act of Aug. 1, 1964, Pub. L. No. 88-419, 78 Stat. 390.5

The CRA was the result of a great deal of congressional consideration. 1960 Sol. Op. at 1883–84; H.R.

Rep. No. 85-1129, at 4, 6–7 (1957) (introducing H.R. 2824).6

3 Submitted for the Court’s convenience as Glazer Decl. Exh. 1.

The CRA established a procedure for the

termination of numerous Rancherias, including the Alexander Valley Rancheria, and for the distribution

4 Submitted as Glazer Decl. Exh. 2. 5 Submitted as Glazer Decl. Exh. 3. 6 Submitted as Glazer Decl. Exh. 4.



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of the Rancheria land and other assets to eligible Indians.7 CRA § 2; see generally Livingston v. United

States, No. CR-F-09-273-LJO, 2010 WL 3463887, at *11–12 (E.D. Cal. Sep. 1, 2010) (discussing his-

tory of termination legislation and policy). After termination, the distributees and their dependents and

lineal descendants lost their federal status as Indians entitled to special treatment because of that status,

and the distributed lands became subject to state and federal taxation. CRA §§ 2(d), 10(b). The CRA

also required the Secretary to make certain improvements, as necessary, to a Rancheria before con-

veying Rancheria lands to individual Indians. In particular, § 3 of the Act directed the Secretary to

complete various construction projects, including the improvement of roads serving Rancheria lands

and the installation of irrigation or domestic water supply systems.8

The CRA required that notice be given of the proposed plan of distribution of Rancheria assets

and provided that objections could be made by “any Indian who feels that he is unfairly treated in the

proposed distribution of the property[.]” Id. § 2(b). After consideration of such objections by the

Secretary, the plan was to be submitted to a referendum and could be approved by a majority of the

Indians of the Rancheria. Id. §§ 2(a), (b). The CRA further provided that once approved under § 2(b),

“the distribution of assets pursuant to such plan shall not be the basis for any claim against the United

States by an Indian who receives or is denied a part of the assets distributed.”

9

In enacting the CRA, Congress was careful to stress that the termination of the Rancherias did

not depend on preparation of a membership roll. H.R. Rep. No. 85-1129, at 4. As Congress observed:

Id. § 10(a).

7 The Secretary promulgated regulations implementing the CRA, 24 Fed. Reg. 4652, 4653–54 (Jun. 9, 1959), codified at 25 C.F.R. Pt. 242. 8 The Act as amended in 1964 required that the government also install necessary sanitation and waste-disposal facilities. That amendment is not relevant to the Alexander Valley Rancheria, which was terminated in 1961. 9 The judgment in the consolidated class actions, Knight v. Kleppe, No. C-74-0005 WTS, and Duncan v. Kleppe, No. C-73-0334 WTS, suspended the termination of the individual Indian status of persons listed in CRA distribution plans or termination notices “as dependent members of the immediate families of distributees,” until those individuals were offered a chance to contest that listing. Judgment at 3–5 (Feb. 20, 1976), submitted as Glazer Decl. Exh. 5. Although Plaintiff refers in passing to Knight v. Kleppe in its First Amended Complaint, ¶ 53, Plaintiff does not rely on that judgment in this litigation.



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The preparation of such rolls would be impracticable because the groups are not well defined. Moreover, the lands were for the most part acquired or set aside by the United States for Indians in California generally, rather than for a specific group of Indians, and the consistent practice has been to select by administrative action the individual Indians who may use the land. The bill [H.R. 2824] provides for the distribution of the land, or the proceeds from the sale of the land, primarily on the basis of plans prepared or approved by these administratively selected users of the land.

Id. at 4–5 (emphasis added).

On July 6, 1959, the Secretary conditionally approved the proposed Alexander Valley Distribu-

tion Plan, subject to any objections, MWT-AVR-2012-000483, and (no objections having been made)

finally approved that plan on September 11, 1959, subject to a referendum of the Alexander Valley

members, MWT-AVR-2012-000498. The proposed Plan was approved by the two adult Rancheria

residents. MWT-AVR-2012-000458 (Adams ballot), MWT-AVR-2012-000464 (McCloud ballot). On

August 1, 1961, notice of the formal termination of the Alexander Valley Rancheria was published in

the Federal Register. 26 Fed. Reg. 6875, 6875–76 (Aug. 1, 1961). AR 12.

3. Litigation challenging Rancheria terminations

On July 12, 1979, a class-action lawsuit was filed challenging the termination of 36 California

Rancherias. Tillie Hardwick v. United States, No. 79-1710 (N.D. Cal.). The Hardwick litigation was

resolved through a stipulation for entry of judgment. The stipulated judgment, entered by the court on

December 22, 1983, restored 17 class member tribes to their former tribal status. Stip. & Order ¶¶ 1, 3,

4.10 The Stipulation and Order dismissed the claims of class members arising from the termination of 12

other Rancherias, “without prejudice to their being refiled in another action,” and provided that the

government “shall not assert any laches defense to any such subsequent action they could not have

asserted prior to the date this action was filed.”11

10 Submitted as Glazer Decl. Exh. 6.

Id. ¶ 14. Claims on behalf of the Alexander Valley

11 Claims arising from the termination of three other Rancherias, as well as other individual claims, were either dismissed with prejudice because barred by judgments in other actions, or dismissed without prejudice because other actions involving those claims were still pending. Hardwick, Stip. & Order ¶¶ 15–19. Three plaintiff Rancherias, Indian Ranch, Lytton, and Nevada City, were not expressly referenced in the final determination by the Hardwick court.



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Rancheria were dismissed without prejudice by further order of December 23, 1985, on the same terms

as provided in the earlier Stipulation and Order.12

4. Plaintiff’s 2009 request for administrative recognition

Plaintiff alleges that it is an American Indian Tribe that was federally recognized until termina-

tion under the CRA in 1959. 1st Amd. Compl. ¶ 5. However, Plaintiff offers no support for that claim

of prior federal recognition. And while federal law recognizes that a “tribe” may be comprised of “the

Indians residing on” a Rancheria, 25 U.S.C. § 479, the CRA only terminated the individual status of

persons residing on the Alexander Valley Rancheria when the Alexander Valley Rancheria property was

distributed, AR 12. Nevertheless, Plaintiff separately alleges that it sought federal restoration as a

“tribe” through an administrative process, which request was denied. 1st Amd. Compl. ¶ 76.

5. Plaintiff’s Complaint

Plaintiff first filed suit on June 5, 2009, ECF No. 1, and then filed a First Amended Complaint,

ECF No. 49, on May 10, 2010. Plaintiff’s First Amended Complaint brings five claims: (1) Plaintiff’s

First Cause of Action for “Breach of Fiduciary Duty”; (2) Plaintiff’s Second Cause of Action for

“Agency Action Unlawfully Withheld or Unreasonably Delayed”; (3) Plaintiff’s Third Cause of Action

for “Failure to Conclude a Matter Within a Reasonable Time”; (4) Plaintiff’s Fourth Cause of Action for

“Arbitrary and Capricious Agency Action”; and (5) Plaintiff’s Fifth Cause of Action for “Violation of

Possessory Rights.” Plaintiff’s Second through Fourth Causes of Action are expressly brought under the

Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701–706.

II. ARGUMENT

A. Plaintiff’s Claims are Barred by the Statute of Limitations

The United States is immune from suit unless it consents to be sued. Congress alone may subject

the United States to suit, and its consent — which is a waiver of sovereign immunity — must be

“unequivocally expressed” in the relevant statutory text. United States v. Idaho, ex rel. Dir., Idaho

12 Submitted as Glazer Decl. Exh. 7.



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Dep’t of Water Res., 508 U.S. 1, 6 (1993) (citing Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 95

(1990)). “A statute of limitations requiring that a suit against the Government be brought within a

certain time period is one of th[]e terms” of the United States’ consent. United States v. Dalm, 494 U.S.

596, 608 (1990). Under 28 U.S.C. § 2401, subject to exceptions not relevant to this case, a plaintiff

must commence suit against the United States within six years of the time its cause of action accrues.13

“‘[A] cause of action generally accrues when a plaintiff knows or has reason to know of the

injury which is the basis of his action.’” Gibson v. United States, 781 F.2d 1334, 1344 (9th Cir.1986)

(quoting Cline v. Brusett, 661 F.2d 108, 110 (9th Cir.1981)). Moreover, actual knowledge is not

required; constructive or inquiry notice is sufficient, absent evidence that the facts underlying the

Plaintiff’s claims were either “inherently unknowable” or actively concealed. Menominee Tribe of

Indians v. United States, 726 F.2d 718, 720–21 (Fed. Cir. 1984).

That statute applies to cases brought under the APA, as well as to other kinds of claims not sounding in

tort or contract. Hells Canyon Pres. Council v. U.S. Forest Serv., 593 F.3d 923, 930 (9th Cir. 2010)

(general six-year statute applies to APA claims); Solid Waste Agency, Inc. v. United States Army Corps

of Eng’rs, 191 F.3d 845, 853 (7th Cir. 1999) (same), rev’d on other grounds, 531 U.S. 159 (2001).

In support of its First Cause of Action, Plaintiff complains that the Federal Defendants breached

their fiduciary duty to the Plaintiff by (1) failing to provide proper notice of the meeting to approve the

distribution plan, 1st Amd. Compl. ¶ 81, (2) failing to ensure that individuals voting on approval were

members of the “Tribe,” id. ¶ 83, (3) failing to include the Tribe on the list of federally recognized

Indian tribes,14

13 The provision reads in full: “Except as provided by [the Contract Disputes Act of 1978], every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues.” 28 U.S.C. § 2401(a).

id. ¶ 85, and (3) failing to include the Plaintiff in the Interior Department’s annual budget

submissions to Congress, id. ¶ 87. Plaintiff’s Second, Third, and Fourth Causes of Action are similarly

based upon the Federal Defendants’ failure to list the Plaintiff as a federally recognized Tribe. Id. ¶¶ 93,

14 That list is published and maintained pursuant to the Federally Recognized Indian Tribe List Act of 1994 (“FRITLA”), Pub. L. No. 103-454, 108 Stat. 4791 (1994), codified at 25 U.S.C. §§ 479a et seq.



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100, 104. Finally, Plaintiff’s Fifth Cause of Action asserts that the Federal Defendants improperly

distributed the Rancheria land and thus did not lawfully terminate the Plaintiff’s right of possession and

occupancy. Id. ¶ 111.

Plaintiff’s claim that the termination process was procedurally defective or otherwise unlawful

should have been brought within six years of the termination, which was publicly noticed in the Federal

Register on August 1, 1961. AR 12. See Hopland Band of Pomo Indians v. United States, 855 F.2d

1573, 1580 (Fed. Cir. 1988) (noting that plaintiff could have brought a challenge to “the legality of its

termination immediately following the improper termination”); see also San Carlos Apache Tribe v.

United States, 639 F.3d 1346, 1350 (Fed. Cir. 2011) (action for breach of fiduciary duty accrues when

beneficiary objectively should have known of alleged breach). Moreover, actual knowledge of a claim

against the government is not necessary. “‘Publication in the Federal Register is legally sufficient notice

to all interested or affected persons regardless of actual knowledge or hardship resulting from igno-

rance.’” Shiny Rock Mining Corp. v. United States, 906 F.2d 1362, 1364–65 (9th Cir. 1990) (quoting

Friends of Sierra R.R., Inc. v. ICC, 881 F.2d 663, 667–68 (9th Cir. 1989)); Gov’t of Guam v. United

States, 744 F.2d 699, 701 (9th Cir. 1984) (claim was time-barred because Federal Register publication

constituted “formal notice to the world”). Thus, the 1961 Federal Register notice of the Alexander

Valley termination was sufficient to make Plaintiff aware of its potential claims at that time.

But even apart from the notice provided in 1961, Plaintiff was given notice on at least two other

occasions, both of which long preceded this lawsuit. First, Plaintiff alleges in this case that the Secretary

failed to include the Tribe on the list of federally recognized Indian tribes promulgated under the

Federally Recognized Indian Tribe List Act of 1994 (“FRITLA”), codified at 25 U.S.C. § 479a et seq.

1st Amd. Compl. ¶ 85. But the Department of Interior published the first tribal list in 1979, and that list

did not include the Plaintiff. 44 Fed. Reg. 7235 (February 6, 1979). Therefore, Plaintiff was once again

put on notice of its potential claims in 1979, thirty years before commencing the present suit. See

Menominee, 726 F.2d at 721 (inquiry notice sufficient). Then again in 1985, Plaintiff was made aware

of its potential claims when it was dismissed from the Tillie Hardwick litigation, in which claims had

been brought on its behalf. See 1st Amd. Compl. ¶ 59 (Hardwick claims brought on behalf of



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“Mishewal Wappo Tribe of Alexander Valley”); Glazer Decl. Exh. 7 (1985 Order dismissing Alexander

Valley claims). In dismissing those claims without prejudice, the Hardwick court found that adequate

notice had been provided to the Alexander Valley class members in 1985.15 Hardwick Order (Dec. 23,

1985). As a result, the statute of limitations has been running since no later than 1985. Humphreys v.

United States, 272 F.2d 411, 412 & n.1 (9th Cir. 1959) (action dismissed without prejudice does not toll

statute of limitations).16

The Federal Defendants anticipate that Plaintiff may argue that the termination of the Alexander

Valley Rancheria over 50 years ago is subject to an open-ended limitations period because the Federal

Defendants have allegedly continued to violate Plaintiff’s rights since termination, many years ago. See

1st Amd. Compl. ¶¶ 85, 87 (continuing failure to list Plaintiff as a federal recognized tribe and to consi-

der Plaintiff in annual budget submissions); ¶ 96 (denial of Plaintiff’s 2009 request for “administrative

restoration”); ¶ 99 (alleged recognition “since at least 1987” that termination was unlawful); ¶ 105

(alleged current recognition that termination was unlawful); ¶ 112 (current right to possession). But in

those circuits that adopt it, the “continuing violations” doctrine typically applies to employment discri-

mination claims. Felter v. Kempthorne, 473 F.3d 1255, 1260 (D.C. Cir. 2007). In contrast, the “conti-

nuing violation” doctrine has been rejected in precisely the context presented here. See, e.g., Wilton

Miwok Rancheria v. Salazar, Nos. C-07-02681-JF-PVT, C-07-05706-JF, 2010 WL 693420, at *5 n.5

(N.D. Cal. Feb. 23, 2010) (citing Felter, 473 F.3d at 1260) (rejecting reliance on continuing violation

doctrine in Rancheria termination case). But even if the doctrine applied to a case like this one, the con-

15 The Hardwick court issued an order on September 5, 1985, Glazer Decl. Exh. 8, specifically directing that notice be given to the Alexander Valley class members, who had been inadvertently omitted from notice of the December 22, 1983 class settlement. Plaintiffs’ counsel reported the results of their efforts to notify class members on October 25, 1985. Glazer Decl. Exh. 9. The court’s December 23, 1985 order dismissing the claims of the Alexander Valley plaintiffs without prejudice, Glazer Decl. Exh. 7, expressly found that the notice to those class plaintiffs had been adequately provided. 16 Of course, that assumes that Plaintiff was not already on notice of potential claims prior to the 1985 dismissal from Hardwick. If on notice in 1961, or at least by 1979, the pendency of the Hardwick suit would not be deducted from the limitations period beginning on either of those earlier dates. Humphreys, 272 F.2d at 412 & n.1.



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tinuing effects of allegedly wrongful past action do not convert a time-barred cause of action into a time-

ly claim. The “‘continuing impact from past violations is not actionable.’” Grimes v. City and Cnty. of

San Francisco, 951 F.2d 236, 238 (9th Cir. 1991) (quoting Reed v. Lockheed Aircraft Corp., 613 F.2d

757, 760 (9th Cir. 1980)).17

Moreover, the Ninth Circuit has held that “the ‘continuing violations’ doctrine ‘is not applicable

in the context of an APA claim for judicial review.’” Hall v. Reg’l Transp. Comm’n, 362 F. App’x. 694,

695 (9th Cir. 2010) (quoting Gros Ventre Tribe v. United States, 344 F. Supp. 2d 1221, 1229 n.3 (D.

Mont. 2004); San Luis Unit Food Producers v. United States, 772 F. Supp.2d 1210, 1228 (E.D. Cal.

2011) (noting Hall holding), aff’d on other grounds, 709 F.3d 798 (9th Cir. 2013). Thus, Plaintiff’s

Second through Fourth Causes of Action, which are expressly brought under the APA, cannot be resur-

rected by resort to the “continuing violations” doctrine.

In sum, regardless of how Plaintiff elaborates it, the root claim in this case is that the Alexander

Valley Rancheria was improperly terminated. Because that termination was a matter of public notice no

later than 1961, additional inquiry notice in 1979, and specific notice to prospective Alexander Valley

claimants in 1985, Plaintiff’s claims are time-barred.

B. Plaintiff’s Claims are Barred by Laches

Plaintiff’s cause of action arose in 1961, with the termination of the Alexander Valley Rancheria.

As explained above, Plaintiff’s claims are barred by the statute of limitations set forth in 28 U.S.C.

§ 2401(a). But even if that statutory limitations period did not bar all of Plaintiff’s claims, any equitable

claims that Plaintiff might have would be barred by laches. Jarrow Formulas, Inc. v. Nutrition Now,

Inc., 304 F.3d 829, 835 (9th Cir. 2002) (laches is a defense to equitable claims).

17 To the extent that 28 U.S.C. § 2401(a) is a jurisdictional bar to suit against the United States, equitable tolling exceptions such as the “continuing violations” doctrine would not be available. See Felter, 473 F.3d at 1260. The Federal Defendants are of course aware that this Court, in ruling on the motion to dismiss filed by the Counties of Napa and Sonoma, ECF No. 145, held that § 2401(a) is not jurisdic-tional. Order Denying Intervenors’ Motion to Dismiss, ECF No. 150, at 7–8 (Oct. 24, 2011). (The Counties have appealed that Order, No. 12-17360 (9th Cir., docketed Oct. 23, 2012).)



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By the terms of the 1983 Hardwick Stipulation and Order for Entry of Judgment, Glazer Decl.

Exh. 6, made applicable to the Alexander Valley Rancheria by the 1985 Hardwick Order Dismissing

Claims by Class Members from the Alexander Valley Rancheria, Glazer Decl. Exh. 7, the Federal

Defendants may not “assert any laches defense to any . . . subsequent action they could not have asserted

prior to the date th[e] [Hardwick] action was filed.” Glazer Decl. Exh. 6, ¶ 14. However, 18 years

elapsed between 1961, when Plaintiff’s cause of action arose, and 1979, when the Hardwick litigation

was filed, three times the length of the limitations period set out in 28 U.S.C. § 2401(a). Because a

claim filed outside the relevant limitations period is presumptively barred by laches, the passage of time

between 1961 and 1979 alone is sufficient to give rise to laches in this case. Internet Specialties West,

Inc. v. Milon-Digiorgio Enters., 559 F.3d 985, 990 & n.2 (9th Cir. 2009); Jarrow Formulas, 304 F.3d at

836. Thus, even if Plaintiff could assert a claim in equity that is not barred by 28 U.S.C. § 2401(a), any

such claim would be barred by laches.18

C. Even if Not Time-barred, Plaintiff’s Claims are Invalid

As argued above, each of Plaintiff’s claims is time-barred. But even if that were not the case,

each claim also fails for other reasons.

1. Plaintiff’s First Cause of Action for “Breach of Fiduciary Duty”

Plaintiff’s First Cause of Action asserts that the Secretary breached a fiduciary duty owed to the

Plaintiff by failing to give proper notice of the vote on the proposed Distribution Plan, 1st Amd. Compl.

¶ 81, and by failing to ensure that those voting on the Plan were members of “the Tribe,” id. ¶ 83. In

short, Plaintiff claims that through alleged procedural defects in the implementation of the Rancheria’s

termination, the federal government breached a fiduciary duty owed to the Plaintiff. Plaintiff also

alleges that the failure to list the Plaintiff as a federally recognized tribe and to consider the Plaintiff in

18 As noted, Plaintiff’s Second through Fourth Causes of Action arise under the APA. Plaintiff’s First Cause of Action, for alleged breach of fiduciary duty, cites a number of unrelated statutory provisions and no applicable waiver of sovereign immunity. Plaintiff’s Fifth Cause of Action seeks damages, typically a remedy at law. Thus, Plaintiff’s First Amended Complaint brings causes of action that are either expressly made subject to § 2401(a), or that do not state a viable claim for equitable relief, quite apart from the laches bar.



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annual budget submissions to Congress, id. ¶¶ 85, 87, constituted a further breach of fiduciary duty. But

none of Plaintiff’s allegations, together or separately, support a claim for fiduciary breach.

First, in enacting the CRA, whose purpose was to terminate the federal government’s trust

relationship with Rancherias voting for termination,19 Congress was acting in its constitutional,

sovereign capacity over Indian affairs and under the Property Clause of the U.S. Constitution.20 Section

10(a) of the CRA tellingly provides that upon final approval, a distribution plan “shall be final, and the

distribution of assets pursuant to such plan shall not be the basis for any claim against the United States

by an Indian who receives or is denied a part of the assets distributed.” The CRA’s language specifi-

cally barring claims against the United States by distributees confirms that Congress believed that the

Indians asserting an interest in Rancheria property were adequately protected by the procedure the

legislature enacted, under which Indians holding assignments of Rancheria property could prepare and

vote on a proposed distribution plan, after consideration of any objections raised by “any Indian who

feels that he is unfairly treated in the proposed distribution . . . .” CRA § 2(b); see also 25 C.F.R.

§§ 242.3–242.6, 24 Fed. Reg. 4652, 4653–54 (Jun. 9, 1959) (CRA implementing regulations providing

procedures for development of plan, notice, objections, and voting).21

Although there exists a “general trust relationship between the United States and the Indian

people,” United States v. Mitchell, 463 U.S. 206, 225 (1983), the United States “assumes Indian trust

responsibilities only to the extent it expressly accepts those responsibilities by statute[,]” United States v.

Jicarilla Apache Nation, ___U.S.___, 131 S. Ct. 2313, 2325 (2011) (holding that common law trust

That specific statutory language

precludes a finding that the federal government breached a trust duty in this case.

19 See S. Rep. No. 85-1874, at 2 (1958) (accompanying H.R. 2824) (enacted bill the last in a series of “various proposals to terminate Federal responsibilities for all Indian property and for the 36,000 Indians in California”), submitted as Glazer Decl. Exh. 10; H.R. Rep. No. 85-1129, at 4 (same). 20 The Property Clause provides, in relevant part, that “[t]he Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States . . . .” U.S. Const., art. IV, § 3, cl. 2. 21 Submitted as Glazer Decl. Exh. 11.



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principles did not override narrow congressional enactment). In order for a fiduciary relationship to

exist, there must be specific language in a treaty, statute, or agreement that gives rise to fiduciary duties.

United States v. White Mountain Apache Tribe, 537 U.S. 465, 479 (2003) (Ginsburg, J., concurring)

(plaintiff must identify “a substantive source of law that establishes specific fiduciary or other duties”);

accord Marceau v. Blackfeet Housing Auth., 540 F.3d 916, 924 (9th Cir. 2008) (“To decide whether

Plaintiffs have a viable claim for violation of a federal trust responsibility, we must examine the

[relevant] statutes and regulations”). Here, the CRA’s plain language does not support a claim for any

breach of trust in this case.

Finally, in the absence of a specific duty that has been placed on the government with respect to

a tribe and its trust property, the United States’ general trust responsibility is discharged by compliance

with generally applicable statutes and regulations. Gros Ventre Tribe v. United States, 469 F.3d 801,

810 (9th Cir. 2006) (tribe cannot bring breach of trust claim to challenge approval of mining operations);

Okanogan Highlands Alliance v. Williams, 236 F.3d 468, 479 (9th Cir. 2000) (citing Morongo Band of

Mission Indians v. F.A.A., 161 F.3d 569, 574 (9th Cir. 1998)) (Tribe’s claim that agency approval of

gold mine violated trust obligations was refuted by compliance with environmental statute).

Here, there is no question that the termination of the Alexander Valley Rancheria complied with

the CRA and its implementing regulations by (1) providing notice of the proposed Distribution Plan, see

MWT-AVR-2012-000491 (general notice); MWT-AVR-2012-000472, -000474 (notice by mail to

William McCloud); MWT-AVR-2012-000490 (notice by mail to James R. Adams); (2) obtaining

approval of the termination from the proposed distributees, see MWT-AVR-2012-000499 (notice of

Secretarial approval of proposed Plan and of vote for final acceptance by distributees); MWT-AVR-

2012-000458 (Adams ballot), MWT-AVR-2012-000464 (McCloud ballot);22

22 No objections to the proposed Plan were received. MWT-AVR-2012-000495.

and (3) distributing the

Rancheria property in accordance with the Plan of Distribution, see MWT-AVR-2012-000540–42 (deed

to Adams), MWT-AVR-2012-000543–45 (deed to McCloud), MWT-AVR-2012-000554–56 (statement



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of completion). Those procedures satisfied the requirements of Section 2 of the CRA and its implemen-

ting regulations at 25 C.F.R. Part 242. See 25 C.F.R. § 242.4 (providing for notice), § 242.5 (allowing

for objections), § 242.6 (voting on plan). Because the Secretary complied with the statutory and

regulatory requirements governing the termination of the Alexander Valley Rancheria, no claim for

breach of fiduciary duty lies in this case because of any alleged procedural defects in the termination.

2. Plaintiff’s Second Cause of Action for “Agency Action Unlawfully Withheld or Unreasonably Delayed”

In its Second Cause of Action, Plaintiff relies on Section 706(1) of the APA, 5 U.S.C. § 706(1),

alleging that the Secretary’s failure to list Plaintiff as a federally recognized tribe constitutes “agency

action unlawfully withheld or unreasonably delayed.” 1st Amd. Compl. ¶¶ 91–96. While APA § 706(1)

specifically authorizes a reviewing court to “compel agency action unlawfully withheld or unreasonably

delayed,” the Supreme Court has identified important limits applicable to that provision, stressing that

“agency action” reviewable under § 706(1) is limited to discrete agency activities of the sort described

in 5 U.S.C. § 551(13). Norton v. Southern Utah Wilderness Alliance (“SUWA”), 542 U.S. 55, 62–65

(2004). Moreover, the Plaintiff must identify not only a “discrete” agency action, but one “demanded by

law.” Id. at 65; accord Ctr. for Biological Diversity v. Veneman, 394 F.3d 1108, 1113 (9th Cir. 2005).

“[T[he only agency action that can be compelled under the APA is action legally required,” SUWA,

542 U.S. at 63, and § 706(1) “empowers a court only to compel an agency ‘to perform a ministerial or

non-discretionary act,’ or ‘to take action upon a matter, without directing how it shall act[,]’” id. at 64

(quoting Attorney General’s Manual on the Administrative Procedure Act 108 (1947)).23

There is nothing in FRITLA that compels recognition of any particular group as a federally

recognized tribe.

24

23 APA § 706(2), 5 U.S.C. § 706(2), provides that a court may “hold unlawful and set aside agency action, findings, and conclusions” under the applicable standard of review. Norton v. SUWA holds that review under that section is also limited to discrete agency actions of the type enumerated in § 551(13). 542 U.S. at 64–65.

In fact, by its terms the statutory direction to publish the list acknowledges the

24 FRITLA is apparently Plaintiff’s authority for its demand that it be listed as a federally recognized (Footnote continued)



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Secretary’s discretion in matters of tribal recognition, providing that “[t]he Secretary shall publish in the

Federal Register a list of all Indian tribes which the Secretary recognizes to be eligible for the special

programs and services provided by the United States to Indians because of their status as Indians.”

25 U.S.C. § 479a-1(a) (emphasis added); see Samish Indian Nation v. United States, 419 F.3d 1355,

1370 (Fed. Cir. 2005) (tribal recognition is a political determination for Congress and the Executive

Branch). Therefore, FRITLA cannot be read to give rise to a nondiscretionary duty reviewable under

the APA.

Finally, review under the APA is not available if a plaintiff has failed to comply with agency

procedures for administrative review. 5 U.S.C. § 704; see Darby v. Cisneros, 509 U.S. 137, 146–47

(1993) (interpreting 5 U.S.C. § 704 to require administrative exhaustion of all intra-agency appeals

mandated either by statute or by agency rule). To the extent that Plaintiff purports to bring an indepen-

dent claim for the alleged failure in 2009 of the Assistant Secretary of the Interior for Indian Affairs to

“recognize” the Plaintiff’s status as federally recognized tribe, see 1st Amd. Compl. ¶¶ 76, 96, Plaintiff

has failed to exhaust the administrative remedies provided under the applicable regulations, 25 C.F.R.

Part 83. In fact, Plaintiff does not allege that it submitted a formal petition with the Assistant Secretary

under the Part 83 Regulations. Moreover, Plaintiff does not allege that it sought reconsideration of an

unfavorable finding by the Assistant Secretary before the Interior Board of Indian Appeals, as provided

under 25 C.F.R. § 83.11. Thus, if Plaintiff’s “request for administrative restoration,” 1st Amd. Compl.

¶ 76, were treated as a petition under the Part 83 regulations, Plaintiff failed to exhaust a necessary

administrative appeal made available under the regulations. Plaintiff cannot then pursue in this Court

any purported claim for the Assistant Secretary’s alleged failure to recognize Plaintiff as a federally

recognized tribe in 2009. White Mountain Apache Tribe v. Hodel, 840 F.2d 675, 677–78 (9th Cir. 1988)

(failure to exhaust mandated administrative procedures fatal to tribal claim brought first in district

court).

tribe. See 1st Amd. Compl. ¶¶ 62–67.



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3. Plaintiff’s Third Cause of Action for “Failure to Conclude a Matter Within a Reasonable Time”

Plaintiff’s Third Cause of Action asserts that the Secretary’s alleged failure to list Plaintiff as a

federally recognized tribe violates a supposed duty under the APA to “within a reasonable time, . . .

conclude a matter presented to it.” 1st Amd. Compl. ¶¶ 98–100. In support of this claim, Plaintiff cites

5 U.S.C. § 552(b), id. ¶ 98, which is a provision of the Freedom of Information Act and does not contain

the language quoted in Plaintiff’s Complaint. Section 555(b) of the APA does contain the language

Plaintiff cites, but that provision by its terms governs procedures applicable only to formal agency

adjudications.25 Thus, Plaintiff’s Third Cause of Action is predicated upon an inapplicable provision of

law and therefore fails to state a claim under Fed. R. Civ. P. 12(b)(6).26

25 The provision reads in full:

See Conservation Force v.

Salazar, 646 F.3d 1240, 1242 (9th Cir. 2011) (quoting Balistreri v. Pacifica Police Dep’t, 901 F.2d 696,

699 (9th Cir. 1990)) (complaint must be dismissed under Rule 12(b)(6) if it suffers from the “lack of a

cognizable legal theory”).

A person compelled to appear in person before an agency or representative thereof is entitled to be accompanied, represented, and advised by counsel or, if permitted by the agency, by other qualified representative. A party is entitled to appear in person or by or with counsel or other duly qualified representative in an agency proceeding. So far as the orderly conduct of public business permits, an interested person may appear before an agency or its responsible employees for the presentation, adjustment, or determination of an issue, request, or controversy in a proceeding, whether interlocutory, summary, or otherwise, or in connection with an agency function. With due regard for the conveni-ence and necessity of the parties or their representatives and within a reasonable time, each agency shall proceed to conclude a matter presented to it. This subsection does not grant or deny a person who is not a lawyer the right to appear for or represent others before an agency or in an agency proceeding.

5 U.S.C. § 555(b) (emphasis added). 26 Under Fed. R. Civ. P. 12(h)(2)(C), Plaintiff’s failure to state a claim may be challenged after the close of pleadings under Rule 12(c); Rule 12(d), in turn, provides that such failure to state a claim may, as appropriate, be resolved under Rule 56.



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4. Plaintiff’s Fourth Cause of Action for “Arbitrary and Capricious Agency Action”

Plaintiff’s Fourth Cause of Action alleges that the Secretary’s failure to list Plaintiff as a

federally recognized tribe is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance

with law.” 1st Amd. Compl. ¶¶ 103–106. Plaintiff relies upon APA § 706(2).

As explained above, like APA § 706(1), § 706(2) applies only to discrete agency actions.

SUWA, 542 U.S. at 64–65. Thus, a plaintiff cannot repackage a “failure to act” claim as a claim for

“arbitrary and capricious” action; either way, if plaintiff challenges the failure to take a non-mandatory

or non-ministerial action, that claim will not lie under the APA. Id. So, because Plaintiff’s Fourth

Cause of Action is merely a repackaging of its Second Cause of Action (for “agency action unlawfully

withheld or unreasonably delayed”), it must similarly be dismissed.

Moreover, just as with its Second Cause of Action, Plaintiff has failed to exhaust its administra-

tive remedies, if Plaintiff’s claim were construed as one challenging an adverse action under 25 C.F.R.

Part 83. For that reason, too, Plaintiff’s Fourth Cause of Action must be dismissed. White Mountain

Apache Tribe, 840 F.2d at 677–78 (failure to exhaust mandated administrative procedures requires

dismissal).

5. Plaintiff’s Fifth Cause of Action for “Violation of Possessory Rights”

Plaintiff’s Fifth Cause of Action alleges that the Secretary wrongfully terminated the Plaintiff

and conveyed its land (to the former Rancheria members as distributees) and, further, that Plaintiff “has

a current right to possession based upon federal law.”27

27 Of course, Plaintiff’s theory is legally inadequate as pled. Plaintiff pleads that the “Tribe” “had the exclusive right to possession and occupancy of that land[,]” 1st Amd. Compl. ¶ 110, and that the Secre-tary wrongfully “purported to convey the Tribe’s land and terminate the Tribe in accordance with the California Rancheria Act[,]” id. ¶ 111. As explained above, the Alexander Valley Rancheria was never the “Tribe’s” land, but was land belonging to the United States and assigned to individual Indians on a temporary basis. Thus, the government did not “terminate” the “Tribe,” nor did it convey the “Tribe’s” land.

1st Amd. Compl. ¶¶ 110–112. Plaintiff’s

Prayer for Relief ¶ H demands damages for lost rental value of the land allegedly wrongfully conveyed.

Plaintiff’s Fifth Cause of Action suffers from two fatal defects.



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First, Plaintiff’s Prayer for Relief ¶ H is premised on the claim that the government wrongfully

terminated the Plaintiff. But, as argued in Section I.B.4, above, and Section II.C.1, below, the Plaintiff

is not the entity that was terminated, and the Court cannot order that the Plaintiff be compensated for

harm allegedly suffered by the Alexander Valley Rancheria distributees.

Second, even if the termination of the Alexander Valley Rancheria were invalid and the distribu-

tees were to assert claims for damages, such claims would not be actionable in this Court. Under the

Indian Tucker Act, 28 U.S.C. § 1505, the claimants would need to pursue any claims for damages in the

Court of Federal Claims, unless they disclaim any demand for recovery exceeding $10,000 per claimant.

Id.; see United States v. Navajo Nation, 556 U.S. 287, 290 (2009); Skokomish Indian Tribe v. United

States, 410 F.3d 506, 511 (9th Cir. 2005) (Court of Federal Claims has exclusive jurisdiction over tribal

claims for damages exceeding $10,000).

D. The Remedies Plaintiff Seeks Cannot be Granted

Plaintiff’s Prayer for Relief requests an order (1) directing restoration of the Plaintiff to “its

previous position or the position Plaintiff would have enjoyed” absent termination, Prayer ¶ A; (2) direc-

ting that Plaintiff be listed as a federally recognized tribe, Prayer ¶ B; (3) declaring that Plaintiff is eli-

gible for certain benefits and services available to federally recognized tribes, Prayer ¶ C; (4) directing

that the Secretary, the Bureau of Indian Affairs, and the Bureau of Land Management identify and trans-

fer into trust for Plaintiff federal lands not currently in use and within the Tribe’s aboriginal territory,

Prayer ¶ D; (5) directing that the transferred lands be considered “Indian Country,” as defined by

18 U.S.C. § 1151, and “restored lands” within the meaning of the Indian Gaming Regulatory Act

(“IGRA”), 25 U.S.C. § 2719(b)(1)(iii), Prayer ¶ E; (6) directing the provision of certain utilities on the

transferred lands, Prayer ¶ F; (7) directing provision of funds for technical assistance to allow the

Plaintiff to take advantage of available federal benefit programs, Prayer ¶ G; (8) ordering payment of

damages, Prayer ¶ H; and (9) ordering payment of attorneys’ fees and expenses, Prayer ¶ I.



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The first three elements of Plaintiff’s requested relief, Prayer ¶¶ A–C, purport to address

Plaintiff’s claims that the Alexander Valley Rancheria was improperly terminated, while the fourth and

fifth elements seek restoration of claimed ancestral lands, Prayer ¶¶ D, E.28

1. Restoration of the Alexander Valley Rancheria would not benefit Plaintiff

As explained further below,

none of that relief is available in this Court.

The CRA terminated the Alexander Valley Rancheria and the relationship between the federal

government and the individual Indians listed in the Federal Register Notice announcing the termination.

CRA § 10(b);29

[n]otice is hereby given that the Indians named under the Rancherias listed below are no longer entitled to any of the services performed by the United States for Indians because of their status as Indians, and all statutes of the United States which affect Indians because of their status as Indians shall be inapplicable to them, and the laws of the several states shall apply to them in the same manner as they apply to other citizens or persons within their jurisdiction. Title to the lands on these Rancherias has passed from the United States Government under the distribution plan of each Rancheria.

AR 12; see Williams v. Gover, 490 F.3d 785, 787 (9th Cir. 2007) (“Congress adopted

the California Rancheria Termination Act in 1958 in order to distribute rancheria lands to individual

Indians.”). Indeed, the Federal Register Notice states plainly that

AR 12 (emphasis added). In short, the termination of the Alexander Valley Rancheria had no effect on

the “Tribe” that Plaintiff claims it represents. Rather, termination under the CRA, which Plaintiff

28 The sixth and seventh elements, Prayer ¶¶ F, G; as well as payment of fees and expenses, Prayer ¶ I, are contingent upon Plaintiff’s prevailing in this litigation as well as the availability of an applicable waiver of sovereign immunity allowing for any payments. The Federal Defendants suggest that any further discussion of those issues be deferred to a later stage of this litigation, if they need to be briefed. Finally, the eighth element of Plaintiff’s Prayer — ¶ H, payment of damages — has been addressed in the preceding Section of this memorandum. 29 That provision reads in full:

After the assets of a rancheria or reservation have been distributed pursuant to this Act, the Indians who receive any part of such assets, and the dependent members of their immediate families, shall not be entitled to any of the services performed by the United States for Indians because of their status as Indians, all statutes of the United States which affect Indians because of their status as Indians shall be inapplicable to them, and the laws of the several States shall apply to them in the same manner as they apply to other citizens or persons within their jurisdiction. Nothing in this Act, however, shall affect the status of such persons as citizens of the United States.



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challenges, affected only the rights of individual Indians who are not before this Court. As a result,

even if the Court were to rule that the Alexander Valley Rancheria was not properly terminated under

the CRA, that ruling would not benefit the Plaintiff. See Williams v. Gover, 490 F.3d at 789–91

(discussing use of distributee lists in restoration of Hardwick Rancherias, consistent with Hardwick

plaintiff class membership definitions). On the contrary, a judicial decree finding the termination

process to have been invalid would at most benefit the lineal descendants of the original Alexander

Valley Rancheria — individuals who, again, are not before this Court.

2. The Court cannot order that land be taken in trust or considered “Indian Lands” or “Restored Lands”

Plaintiff seeks an order requiring the Secretary to take as-yet-unidentified lands into trust, Prayer

¶ D, and to consider such lands “Indian Country,” under 18 U.S.C. § 1151, and “restored lands,” within

the meaning of IGRA, 25 U.S.C. § 2719(b)(1)(iii), Prayer ¶ E. The decision on whether to take land into

trust is a discretionary one, and the determination that such lands are “restored lands” involves consi-

deration by the Secretary of a factual record that must be first compiled before the Agency. In turn, the

question of whether any such lands should be considered “Indian County” is simply not before the Court

at this time.

The authority to take land into trust is found in the Indian Reorganization Act (“IRA”), 25 U.S.C.

§§ 465, 467. IRA § 465 vests the Secretary of the Interior with discretionary authority to take land into

trust “for the purpose of providing land for Indians.” Section 467, in turn, permits the Secretary to

declare and add to reservations. The Secretary has promulgated regulations setting forth the procedure

for “fee-to-trust” decisions, found in 25 C.F.R. Part 151. Under 25 C.F.R. § 151.9, an individual Indian

or tribe requesting that the Secretary take land into trust status must file a written request with the

Secretary. That request must provide the detailed information required by 25 C.F.R. §§ 151.10 and

151.11. The Secretary is also required to solicit the views of state and local governments concerning

“the acquisition’s potential impacts on regulatory jurisdiction, real property taxes and special assess-

ments.” Id. §§ 151.10, 151.11(d). Finally, the Secretary may request “any additional information or

justification he considers necessary to enable him to reach a decision.” Id. § 151.12.



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Only after lands are taken into trust or deemed reservations do they become “Indian lands”

subject to IGRA. 25 U.S.C. § 2703(4). See Redding Rancheria v. Salazar, 881 F. Supp. 2d 1104, 1109

(N.D. Cal. 2012) (discussing IGRA and the IRA). IGRA provides the framework for determining on

which lands Indians may conduct gaming under federal law, see 25 U.S.C. §§ 2703(4), 2719, and the

concept of “restored lands” is a creation of IGRA. Subject to exceptions under § 2719(b), IGRA

§ 2719(a) otherwise prohibits gaming on Indian lands taken into trust after October 17, 1988. IGRA

§ 2719(b)(1)(B)(iii) provides that the statute’s general prohibition against gaming on after-acquired

lands does not apply to lands taken into trust as part of “the restoration of lands for an Indian tribe that is

restored to Federal recognition” — the “restored lands” exception.

The Secretary has promulgated regulations under IGRA that implement IGRA’s “restored lands”

exception to the statute’s general prohibition. 25 C.F.R. §§ 292.7–292.12. However, even for a tribe

that has been restored by judicial decree after litigation, see 25 C.F.R. § 292.11(c), the Secretary will

deem the tribe’s later acquired lands “restored” only if the lands meet the detailed regulatory require-

ments set forth in 25 C.F.R. § 292.12, Redding Rancheria, 881 F. Supp. 2d at 1110–11. Those regula-

tions require that the tribe make a number of factual showings based on a record submitted initially to

the Agency, under 25 C.F.R. § 292.30

30 The regulatory criteria require the following demonstration:

To establish a connection to the newly acquired lands for purposes of § 292.11, the tribe must meet the criteria in this section.

(a) The newly acquired lands must be located within the State or States where the tribe is now located, as evidenced by the tribe’s governmental presence and tribal population, and the tribe must demonstrate one or more of the following modern connections to the land:

(1) The land is within reasonable commuting distance of the tribe’s existing reservation;

(2) If the tribe has no reservation, the land is near where a significant number of tribal members reside;

(3) The land is within a 25-mile radius of the tribe’s headquarters or other tribal governmental facilities that have existed at that location for at least 2 years at the time of the application for land-into-trust; or

(Footnote continued)



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The Secretary’s decision implementing the “restored lands” exception in particular cases is sub-

ject to review under the APA’s “arbitrary and capricious” standard. Redding Rancheria, 881 F. Supp.

2d at 1112, 1121–22. More important, the Court should not direct the outcome of that determination in

advance, but rather should allow the Secretary to make the requisite findings based upon the record

presented to the Agency. 25 C.F.R. §§ 292.7–292.12; see Clark v. Time Warner Cable, 523 F.3d 1110,

1114 (9th Cir. 2008) (under doctrine of “primary jurisdiction,” where agency must determine issue com-

mitted to it by Congress, court should allow agency to make necessary findings prior to judicial review).

It is therefore inappropriate for Plaintiff to seek an order from the Court directing the Secretary to make

any determination that any particular lands should be considered “restored lands” when, in fact, the

Agency may properly determine that they are not.

/ / /

(4) Other factors demonstrate the tribe’s current connection to the land.

(b) The tribe must demonstrate a significant historical connection to the land.

(c) The tribe must demonstrate a temporal connection between the date of the acquisition of the land and the date of the tribe’s restoration. To demonstrate this connection, the tribe must be able to show that either:

(1) The land is included in the tribe’s first request for newly acquired lands since the tribe was restored to Federal recognition; or

(2) The tribe submitted an application to take the land into trust within 25 years after the tribe was restored to Federal recognition and the tribe is not gaming on other lands.

25 C.F.R. § 292.12.



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Finally, “Indian Country” is defined by statute, 18 U.S.C. § 1151,31

III. CONCLUSION

and constitutes “country

within which Indian laws and customs and federal laws relating to Indians are generally applicable.”

1-3 Cohen’s Handbook of Federal Indian Law § 3.04[1] (Matthew Bender 2012), available at

www.lexis.com. However, because there is no mandatory duty to take land into trust, no determination

that any such land be treated as “Indian Country” arises in this case unless and until the Secretary

decides to take land into trust “for the purpose of providing land for Indians” under 25 U.S.C. § 465.

Any order requiring that the Secretary deem any particular lands to be “Indian Country” would be

premature.

For the reasons set forth above, the Federal Defendants respectfully request that the Court grant

their motion for summary judgment and to enter judgment in their favor on all of Plaintiff’s claims. Respectfully submitted, DATED: May 31, 2013 IGNACIA S. MORENO Assistant Attorney General Environment & Natural Resources Division

/s/David B. Glazer DAVID B. GLAZER Natural Resources Section Environment & Natural Resources Division United States Department of Justice 301 Howard Street, Suite 1050 San Francisco, California 94105 Tel: (415) 744-6491 Fax: (415) 744-6476

31 That statutory provision reads in full:

Except as otherwise provided in sections 1154 and 1156 of this title [governing sale or possession of “intoxicants”], the term “Indian country,” as used in this chapter, means (a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, [sic] including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.

18 U.S.C. § 1151.



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E-mail: [email protected] Attorneys for Federal Defendant OF COUNSEL Rebekah Krispinsky Attorney-Advisor Office of the Solicitor U.S. Department of the Interior



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CERTIFICATE OF SERVICE

I, David B. Glazer, hereby certify that, on May 31, 2013, I caused the foregoing to be served

upon counsel of record through the Court’s electronic service.

I declare under penalty of perjury that the foregoing is true and correct.

Dated: May 31, 2013 /s/David B. Glazer David B. Glazer


IGNACIA S. MORENO Assistant Attorney General · Mishewal Wappo Tribe of Alexander Valley v. Jewell,...

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