SHEPPARD, MULLIN, RICHTER & HAMPTON LLP A Limited … · 2016-10-20 · SHEPPARD, MULLIN, RICHTER &...

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SMRH:.4 INTERVENOR-DEFENDANTS’ OPPOSITION TO MOTION FOR STAY

SHEPPARD, MULLIN, RICHTER & HAMPTON LLP A Limited Liability Partnership Including Professional Corporations ROBERT J. URAM, Cal. Bar No. 122956 [email protected] JAMES F. RUSK, Cal. Bar No. 253976 [email protected] Four Embarcadero Center, 17th Floor San Francisco, California 94111-4109 Telephone: 415.434.9100 Facsimile: 415.434.3947 Attorneys for THE CALIFORNIA VALLEY MIWOK TRIBE, THE TRIBAL COUNCIL, YAKIMA DIXIE, VELMA WHITEBEAR, ANTONIA LOPEZ, MICHAEL MENDIBLES, GILBERT RAMIREZ, JR., ANTOINETTE LOPEZ, and IVA SANDOVAL

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA, SACRAMENTO DIVISION

CALIFORNIA VALLEY MIWOK TRIBE, a federally-recognized Indian tribe, THE GENERAL COUNCIL, SILVIA BURLEY, RASHEL REZNOR; ANGELICA PAULK; and TRISTIAN WALLACE,

Plaintiffs,

v.

SALLY JEWEL, in her official capacity as U.S. Secretary of Interior; LAWRENCE S. ROBERTS, in his official capacity as Acting Assistant Secretary of Interior - Indian Affairs; MICHAEL BLACK, in his official capacity as Director of the Bureau of Indian Affairs,

Defendants.

Case No. 2:16-01345 WBS CKD OPPOSITION TO PLAINTIFFS’ MOTION FOR AN ORDER STAYING AS-IA’S DECEMBER 30, 2015 DECISION Judge: Hon. William B. Shubb Date: September 6, 2016 Time: 1:30 p.m. Courtroom 5

Case 2:16-cv-01345-WBS-CKD Document 20 Filed 08/08/16 of 24

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-ii- SMRH:.4 INTERVENOR-DEFENDANTS’ OPPOSITION TO MOTION FOR STAY

TABLE OF CONTENTS

Page

I. INTRODUCTION ............................................................................................................. 1

II. FACTS .............................................................................................................................. 2

A. Tribal History ........................................................................................................ 2

B. The 1998 Resolution and interim council ............................................................... 3

C. Miwok I and II ....................................................................................................... 4

D. The 2011 Decision and Miwok III .......................................................................... 5

E. The Tribe’s 2013 election ...................................................................................... 6

F. The 2015 Decision and the Tribal Council’s Recognition Request ......................... 7

G. The BIA’s request for comment from the Burleys and the inception of this litigation ................................................................................................................ 9

III. LEGAL STANDARDS ................................................................................................... 10

A. Injunctive relief ................................................................................................... 10

B. Judicial review of federal agency action ............................................................... 11

IV. ARGUMENT .................................................................................................................. 11

A. The Burleys have not shown they are likely to succeed on the merits. .................. 12

1. The purported enrollment of the Burleys in 1998 has no bearing on the validity of the 2015 Decision. ............................................................. 12

2. The 1998 Resolution did not establish a valid Tribal government. ............ 13

B. The Burleys have not shown they are likely to suffer imminent and irreparable harm absent a stay. ............................................................................. 14

1. Release of the funds is not imminent. ....................................................... 15

2. Release of the funds would not cause irreparable harm. ............................ 16

C. The balance of equities favors Intervenors. .......................................................... 16

D. An injunction is not in the public interest. ............................................................ 17

E. The Burleys’ requested relief is overbroad ........................................................... 17

F. The Assistant Secretary chose not to stay the 2015 Decision. ............................... 18

V. CONCLUSION ............................................................................................................... 18


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-iii- SMRH:.4 INTERVENOR-DEFENDANTS’ OPPOSITION TO MOTION FOR STAY

TABLE OF AUTHORITIES

Page(s) Federal Cases

A Woman’s Friend Pregnancy Res. Clinic v. Harris 153 F.Supp.3d 1168 (E.D. Cal. 2015) .................................................................................... 16

Aguayo v. Jewell No. 14-56909, slip op. (9th Cir. 2009) ..............................................................................12, 17

California Valley Miwok Tribe v. Jewell 5 F.Supp.3d 86 (D.D.C. 2013) (Miwok III) ..................................................................... passim

California Valley Miwok Tribe v. Kempthorne No. 2:08-cv-03164 (E.D.Cal. 2009) ......................................................................................... 4

California Valley Miwok Tribe v. United States 515 F.3d 1262 (D.C. Cir. 2008) (Miwok II) .................................................................... passim

California Valley Miwok Tribe v. USA 424 F.Supp.2d 197 (D.D.C. Mar. 31, 2006) (Miwok I) .................................................... passim

Caribbean Marine Services Co., Inc. v. Baldrige 844 F.2d 668 (9th Cir. 1988) ................................................................................................. 15

Columbia Pictures Indus., Inc. v. Fung 710 F.3d 1020 (9th Cir. 2013) ..........................................................................................10, 18

Goodface v. Grassrope 708 F.2d 335 (8th Cir. 1983) ................................................................................................. 17

Midgett v. Tri–County Metro. Transp. Dist. of Oregon 254 F.3d 846 (9th Cir. 2001) ................................................................................................. 15

Nken v. Holder 556 U.S. 418, 129 S.Ct. 1749 (2009) ..................................................................................... 10

San Luis & Delta-Mendota Water Auth. v. Locke 776 F.3d 971 (9th Cir. 2014) ................................................................................................. 11

Selkirk Conservation Alliance v. Forsgren 336 F.3d 944 (9th Cir. 2003) ................................................................................................. 11

Skydive Arizona, Inc., v. Quattrochi 673 F.3d 1105 (9th Cir. 2012) ..........................................................................................10, 17

Stormans, Inc., v. Selecky 586 F.3d 1109 (9th Cir. 2009) ............................................................................................... 11


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-iv- SMRH:.4 INTERVENOR-DEFENDANTS’ OPPOSITION TO MOTION FOR STAY

Winter v. Natural Resources Defense Council, Inc. 555 U.S. 7, 129 S.Ct. 365 (2008) ......................................................................................10, 15

Yakama Nation v. Northwest Regional Director Bureau of Indian Affairs 47 IBIA 117 (2008) ............................................................................................................... 15

State Cases

California Valley Miwok Tribe v. Cal. Gambling Control Comm’n 231 Cal.App.4th 885 (2014) (Miwok IV) ................................................................ 6, 15, 16, 18

Federal: Statutes, Rules, Regulations, Constitutional Provisions

Administrative Procedure Act, 5 U.S.C. § 706 ............................................................................ 11

California Rancheria Act ............................................................................................................... 3

25 C.F.R. §§ 2.4(e), 2.6(a). (e) .............................................................................................................. 15 § 2.6(b) ................................................................................................................................. 15 § 2.6(c).................................................................................................................................. 18

43 U.S.C. § 1457........................................................................................................................... 4

Indian Reorganization Act, 25 U.S.C. § 476 ...........................................................................3, 4, 7

Indian Self Determination Act, Public Law 638 ...................................................................... 4, 13


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-1- SMRH:.4 INTERVENOR-DEFENDANTS’ OPPOSITION TO MOTION FOR STAY

I. INTRODUCTION

Plaintiff Silvia Burley, her two daughters and her granddaughter (Burleys) have fought

since 1998 for exclusive control of the federally recognized California Valley Miwok Tribe

(Tribe), claiming they are the Tribe’s only members and its rightful government. The Burley’s

attempted power grab has spawned multiple court cases, including three published opinions that

affirm the federal government’s duty to protect majoritarian values in Tribal organization and

reject the Burleys’ claims to have established a Tribal government “without so much as consulting

[the Tribe’s] membership.” California Valley Miwok Tribe v. United States, 515 F.3d 1262, 1263

(D.C. Cir. 2008) (Miwok II).

The Intervenor-Defendant Tribal Council represents approximately 200 adult members of

the Tribe and their children. The Tribal Council has applied to the federal Bureau of Indian Affairs

(BIA) for federal recognition as the Tribe’s government based on a July 6, 2013 Tribal election

that adopted a Tribal Constitution and ratified the authority of the Tribal Council.

In this case, the Burleys challenge the December 30, 2015 decision (2015 Decision) by the

BIA that the United States does not recognize the Burleys as representing the Tribe and that it can

only recognize a Tribal government formed through a process in which the entire Tribal

community had an opportunity to participate. The Burleys seek to enjoin “implementation” of the

2015 Decision because they fear the BIA will recognize the Tribal Council — formed with the

consent of the Tribe’s 200 members — as the Tribe’s government, and the California Gambling

Control Commission will then distribute funds it currently holds in trust for the Tribe to the Tribal

Council. The Court should deny the motion because the Burleys cannot clear the high bar for the

extraordinary remedy of injunctive relief under the well-established four-factor test.

The Burleys are not likely to succeed on the merits, because both the factual record and

prior court decisions support the 2015 Decision’s findings that (i) the Burleys are not the only

members of the Tribe and (ii) the government they purported to form does not have the support or

consent of the Tribal community. In attacking those findings, the Burleys merely repeat

arguments the District Court for the District of Columbia rejected in overturning a 2011 BIA

decision that was more favorable to the Burleys. See California Valley Miwok Tribe v. Jewell,


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5 F.Supp.3d 86 (D.D.C. 2013) (Miwok III). The Burleys did not appeal that decision and cannot

relitigate it in this Court.

The Burleys have not shown the financial injury they fear is imminent or irreparable, or

even that it is caused by the 2015 Decision. They claim the BIA informed them it would decide

by July 12, 2016, whether to recognize the Intervenor Tribal Council, but the BIA only asked the

Burleys to provide comments by that date—it did not set a timetable for its decision or indicate

what the decision would be. If and when the BIA decides to recognize the Tribal Council, the

California Gambling Control Commission still must decide whether, and when, to release funds to

the Tribe. Any speculative injury the Burleys might suffer would be caused by those future

decisions, not by the 2015 Decision they seek to enjoin, and could be recouped by a claim for

money damages if the Commission erroneously released Tribal funds.

The Burleys ignore the harm to the Tribe, its members and the Tribal Council from further

delaying resolution of a dispute that has already crippled the Tribe’s government for more than a

decade. They also ignore the public interest in protecting majoritarian values and Tribal

sovereignty, which would be undermined if the 2015 Decision is enjoined.

Because all four factors weigh against the Burleys’ motion for injunctive relief, the motion

should be denied.

II. FACTS

The history of the Tribe and the current dispute is well documented in the published

opinions resulting from the Burleys’ prior attempts to claim Tribal authority.

A. Tribal History

In 1913, federal Office of Indian Affairs (now BIA) agent John Terrell located a group of

Miwok Indians — remnants of a larger band — living in and near the former mining town of

Sheepranch in Calaveras County, California. Miwok III, 5 F.Supp.3d at 89. The agent took a

census of the 13 band members he found there and noted they were “[t]o some extent …

interchangeable in their relations” with the Indians of nearby Miwok communities in Murphys,

SixMile, Avery and Angles. Id. at 89 n.2. The United States acquired a small parcel of land and

created a reservation for the benefit of these Indians, which was known as the Sheep Ranch


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Rancheria.1 Id. at 89. The Tribe has been recognized by the United States since then, initially as

the Sheep Ranch Rancheria of Me-Wuk Indians of California and more recently as the California

Valley Miwok Tribe. First Amended Complaint, ECF No. 4, ¶ 127 (FAC).

Rancheria resident Jeff Davis, the sole eligible voter, voted in 1935 to accept application to

the Tribe of the Indian Reorganization Act (IRA), 25 U.S.C. § 476, which authorizes tribes to

“organize” by adopting a constitution and government through a majoritarian process.2 Miwok III,

5 F.Supp.3d at 89. The Tribe did not organize at that time.3 Id. In 1966, the BIA began

proceedings to terminate the United States’ relationship with the Tribe under the California

Rancheria Act, but it did not complete the process and federal recognition of the Tribe was never

terminated. Id. As part of that process, the BIA did convey fee title in the Rancheria property to

the sole resident of the Rancheria at that time, Mabel Hodge Dixie. Id.

B. The 1998 Resolution and interim council

Ms. Dixie’s son Yakima Dixie was the only Tribal member living on the Rancheria

property in 1998 when Silvia Burley “wrote for Yakima's signature, a statement purporting to

enroll herself, her two children, Rashel Roznor [sic] and Anjelica Paulk, and her granddaughter,

Tristian Wallace, into the Tribe.” Id. at 90. Later in 1998, Dixie and Burley signed a document,

“Resolution #GC-98-01” (the 1998 Resolution), which recited that the membership of the Tribe

consisted of “at least” the Burleys and Dixie, and purported to establish a “general council” 1 The record reflects that the Rancheria currently covers 0.92 acre, 5 F.Supp.3d at 89, but it may have included 2 acres when first purchased. See California Valley Miwok Tribe v. USA, 424 F.Supp.2d 197, 197-198 (D.D.C. Mar. 31, 2006) (Miwok I), affirmed, 515 F.3d 1262. The difference is not germane to this litigation. 2 Although Jeff Davis was the only eligible IRA voter by virtue of his residence on the Rancheria at that time, he was not the only Tribal member; the Tribe’s membership was never limited to those people living on the tiny Rancheria property at any given time. Decl. of M. Corrales, ECF No. 11, Exhibit 4, pp. 4, 4 n.19 (2015 Decision). 3 In the 2015 Decision and throughout the federal court opinions involving this Tribe, “organize” and “reorganize” are used interchangeably to refer to the process of adopting tribal governing documents through a majoritarian process — whether under procedures prescribed by the IRA, see 25 U.S.C. § 476(a)-(d), or under other procedures, see 25 U.S.C. § 476. Regardless of the procedures used, organization must “reflect the will of a majority of the tribal community.” California Valley Miwok Tribe v. USA, 424 F.Supp.2d 197, 202 (D.D.C. Mar. 31, 2006) (Miwok I), affirmed, 515 F.3d 1262.


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consisting of all adult members. They did not involve any other members of the Tribe in this

process. Id. at 90-91. In 1999, Burley submitted a letter to the BIA claiming she had replaced

Dixie as the leader of the Tribe under the 1998 Resolution — a claim Mr. Dixie disputed. Id. at

91-92.

The BIA initially accepted Burley as the head of an “interim Tribal Council” and, from

1999 through 2004, provided that council with federal funds under the Indian Self Determination

Act, Public Law 638, for the purpose of organizing the Tribe. California Valley Miwok Tribe v.

USA, 424 F.Supp.2d 197, 200 (D.D.C. Mar. 31, 2006) (Miwok I), affirmed, 515 F.3d 1262. See

also Miwok II, 515 F.3d at 1265 n.6; Miwok III, 5 F.Supp.3d at 91, 93 n.10. During that time,

Burley submitted a series of proposed Tribal constitutions to the BIA, seeking to demonstrate that

the Burleys had properly organized the Tribe. Miwok II, 515 F.3d at 1265. But the constitutions

reflected the involvement of only Burley and her two adult daughters and would have limited

Tribal membership to only them and their descendants, even though Burley herself estimated the

Tribe’s membership at around 250 people. Id. at 1265-1266; Miwok I, 424 F.Supp.2d at 203 n.7.

C. Miwok I and II

The BIA rejected the Burley constitutions, “explaining that [Burley] would need to at least

attempt to involve the entire tribe in the organizational process before the Secretary would give

approval.”4 Miwok II, 515 F.3d at 1265. The BIA also rescinded its interim recognition of Burley

and the general council and terminated federal funding to the council, stating in a February 2005

decision that it “does not recognize any tribal government” for the Tribe.5 Miwok III, 5 F.Supp.3d

at 93-94. Burley sued the United States in the Tribe’s name, claiming the IRA required the BIA to

approve her constitution, id. at 1266. She argued, in the alternative, that the BIA had previously

4 Congress has charged the Secretary of the Interior with authority over Indian affairs, 43 U.S.C. § 1457, and the Secretary has delegated this responsibility to the BIA, which is headed by the Department of the Interior’s Assistant Secretary – Indian Affairs. See Miwok I, 424 F.Supp.2d at 201 n.6. 5 Burley sued the United States in this court in 2008, alleging the BIA had unlawfully failed to renew funding contracts with her tribal council. The case was dismissed for failure to exhaust administrative remedies. California Valley Miwok Tribe v. Kempthorne, No. 2:08-cv-03164 (E.D.Cal. 2009).


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recognized the general council under the 1998 Resolution with her as its leader, and could not

“reverse that position” despite her failure to identify the Tribe’s members and involve them in

forming a Tribal government as the BIA contemplated when it provided funds for Tribal

organization.6 Miwok I, 424 F.Supp.2d at 201.

The district court in Miwok I upheld the refusal to recognize the Burley government,

finding it consistent with the BIA’s “responsibility to ensure that [the] Secretary deals only with a

tribal government that actually represents the members of a tribe.” 424 F.Supp.2d at 201. The

D.C. Circuit affirmed, holding that Burley’s “antimajoritarian gambit deserves no stamp of

approval from the Secretary.” Miwok II, 515 F.3d at 1267.

D. The 2011 Decision and Miwok III

After Miwok I, the BIA attempted in 2006-2007 to help the Tribe involve the Tribal

community in the organization process, but Burley refused to participate and thwarted the BIA’s

effort by filing multiple administrative appeals, which culminated in a referral to the Assistant

Secretary – Indian Affairs, the BIA’s highest official. Miwok III, 5 F.Supp.3d at 94-95. The

Assistant Secretary issued a decision on August 31, 2011 (2011 Decision) that reversed the BIA’s

prior position and found (i) the Tribe’s membership was limited to the four Burleys and Yakima

Dixie, and (ii) the Tribe was already organized with a general council form of government under

the 1998 Resolution.7 Id. at 95. The Intervenors in this action filed suit challenging the 2011

Decision, and the Burleys intervened in the name of the Tribe.

The district court found the 2011 Decision arbitrary and capricious because the Assistant

Secretary unreasonably assumed the Tribe’s membership was limited to five people despite a

record “replete with evidence” of a much larger Tribal community. Id. at 98. The court also

found the Assistant Secretary’s conclusion that the 1998 Resolution established a valid Tribal

government to be unreasonable in light of the record. Id. at 99-100. The court observed that

6 The Burleys have never accounted for the millions of dollars in federal and state funds they received in the name of the Tribe between 1999 and 2004. 7 For litigation purposes, the Burleys count Yakima Dixie as the fifth member of the Tribe, but they purported to “disenroll” him in 2005. Miwok I, 424, F.Supp.2d at 201.


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“when an internal dispute questions the legitimacy of the initial tribal government, the BIA must

ascertain whether the initial government is a duly constituted government” and cannot merely

“repeat[] the rhetoric of … federal noninterference with tribal affairs.” Id. at 100 (italics added;

quotation marks and citations omitted). The Assistant Secretary’s acceptance of the 1998 general

council, despite its failure to involve the Tribe’s members, violated the United States’ “distinctive

obligation of trust” to the Tribe. Id. (quoting Seminole Nation v. United States, 316 U.S. 286, 296

(1942)). On December 13, 2013, the district court remanded the 2011 Decision to the Secretary of

the Interior for reconsideration consistent with its decision.8 Id. at 101.

E. The Tribe’s 2013 election

While the administrative appeals and federal litigation were ongoing, the Tribal Council

continued efforts to involve the entire Tribal community in Tribal organization. Decl. of Robert

Uram, Exhibit A, p. 2 (Recognition Request). The Council members conducted extensive outreach

to the Tribal community through monthly open meetings, mailings, meetings and phone calls with

local Miwok organizations and individuals, and participation in cultural activities and Native

American gatherings. Id. Under the Council’s leadership, the Tribal community met repeatedly to

draft and discuss a Tribal constitution. Recognition Request, Attachment 2, pp. 3-5.

After an unsuccessful attempt to ratify a Tribal constitution in 2012, the Tribal Council

called an election for July 6, 2013, for the Tribal community to consider ratifying a revised

constitution (2013 Constitution). Recognition Request, Attachment 2, p. 5. By that time, the

Tribal Council had identified approximately 200 adults who were eligible and desired to

8 The Burleys argue the district court in Miwok III did not have the “benefit” of deposition testimony that the Burleys took from Yakima Dixie in 2012 in related state court litigation, in which Mr. Dixie allegedly admitted that he resigned as chairman of the five-person general council created under the 1998 Resolution. MPA at 3-4. This claim, while disputed, is ultimately irrelevant in light of the 2015 Decision’s finding that the 1998 Resolution did not create a valid Tribal government. 2015 Decision at 5. See California Valley Miwok Tribe v. Cal. Gambling Control Comm’n, 231 Cal.App.4th 885, 901 (2014) (Miwok IV). In any case, the Burleys provided the deposition to the Assistant Secretary before he made the 2015 Decision.


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participate in Tribal organization.9 Id. Of the 200 eligible voters, more than half (104) cast ballots

in the election, and they overwhelmingly approved the 2013 Constitution by a vote of 90 to 10,

with 4 abstentions. Id. at 7. The Burleys had notice of the organization process but chose not to

participate with the Tribe. Id. at 13. The Tribal Council informed the Assistant Secretary of the

election results on July 11, 2013 and stated that it intended to seek BIA recognition of its

government after Miwok III was resolved. Id. at 7.

F. The 2015 Decision and the Tribal Council’s Recognition Request

Two years after the court’s remand in Miwok III, the Assistant Secretary issued the 2015

Decision. The 2015 Decision unequivocally rejected the Burleys’ claims that the Tribe consists of

only five members and that the 1998 Resolution established a valid Tribal government. Decl. of

M. Corrales, ECF No. 11, Exhibit 4, pp. 3, 6 (2015 Decision). Accordingly, the Decision

determined that “Ms. Burley and her family do not represent the [Tribe].” Id. at 5.

The 2015 Decision determined that the individuals eligible to participate in the

reorganization of the Tribe are “the Mewuk Indians for whom the [Sheep Ranch] Rancheria was

acquired and their descendants.” Id. at 4. The Decision identified those individuals as: (1) the

individuals listed on the 1915 Terrell Census and their descendants; (2) the descendants of

Rancheria resident Jeff Davis (who was the only person on the 1935 IRA voter list for the

Rancheria); and (3) the heirs of Mabel Dixie, as identified by the Department of Interior’s Office

of Hearings and Appeals in 1971, and their descendants. Id. The 2015 Decision determined that,

consistent with Miwok I, II and III, these individuals (collectively the Eligible Groups) must be

given an opportunity to take part in any Tribal organization. Id. at 4, 6. Recognizing that “the

Indians named on the 1915 Terrell Census had relatives in other Calaveras County communities,”

the 2015 Decision also determined that descendants of Miwok Indians named on the 1929 census

9 Various estimates placed the number of eligible people at approximately 250, see Miwok III, 5 F.Supp.3d at 98, but by 2013 some individuals chose not to participate with the Tribe — for instance, those who were eligible for membership in the Wilton Rancheria and chose to join that tribe, which regained federal recognition in 2009. Recognition Request, Attachment 2, p. 5.


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of Indians of Calaveras County (1929 Census) may be included in Tribal organization at the

discretion of the Eligible Group members. 2015 Decision at 5.

The 2015 Decision determined the BIA could not recognize the general council established

under the 1998 Resolution as a valid Tribal government because “the people who approved the

1998 Resolution … are not a majority of those eligible to take part in the reorganization of the

Tribe.” Id. As a result of the Decision, the Burleys “do not represent the [Tribe]” and have the

same status as any other member of the Eligible Groups. Id.10

The 2015 Decision also considered the Tribe’s 2013 Constitution, which recognizes all

Eligible Group members and 1929 Census descendants as eligible for Tribal membership. Id. at 6.

The Decision found the Tribe had not yet demonstrated the 2013 Constitution was validly ratified

because the record did not disclose whether adequate notice of the 2013 election was provided to

members of the Eligible Groups. Id. The Decision authorized the BIA’s Pacific Regional

Director to receive additional submissions for the purpose of determining whether the 2013

Constitution was validly ratified. Id.

On April 18, 2016, the Tribal Council submitted additional information to the Regional

Director and requested that she recognize the 2013 Constitution and Tribal Council ratified

through the July 6, 2013 election. Recognition Request at 1. The Recognition Request included a

report prepared at the Tribal Council’s direction that documented the results of the election and the

outreach and notice to members of the Eligible Groups preceding the election. Recognition

Request, Attachment 2. The Recognition Request showed that of the 104 eligible voters who

participated in the election, 95 were Eligible Group members, and the remaining 9 voters were

1929 Census descendants who participated with the consent of the Eligible Group members.

Recognition Request pp. 3-4, Attachment 2 pp. 3-4, 7.

To date, the BIA has not issued a decision on the Tribal Council’s Recognition Request.

10 Based on information the Burleys provided to the BIA, the Tribal Council believes the Burleys are members of the Eligible Groups and thus eligible to participate in Tribal organization, but the Burleys have chosen not to participate with the rest of the Tribal community. WhiteBear Declaration ¶ 9.


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G. The BIA’s request for comment from the Burleys and the inception of this litigation

On June 9, 2016, the BIA notified the Burleys that the Tribal Council had requested

recognition of the 2013 Constitution, provided the Burleys with a copy of the Tribal Council’s

entire Recognition Request, and invited the Burleys to provide comments on the process used to

conduct the 2013 election. The letter stated in part, “By close of business on July 12, 2016,

please provide your comments and any documents that support your position.” Decl. of M.

Corrales, ECF No. 11, Exhibit 1 (emphasis in original). The letter did not say when the BIA

would decide whether to recognize the 2013 Constitution.

Rather than providing comments to the BIA, the Burleys filed this lawsuit on June 16,

2016, challenging the validity of the 2015 Decision. ECF No. 1. On July 1, the Burleys filed an

ex parte application for an emergency stay of the 2015 Decision, claiming the BIA’s June 9 letter

had notified the Burleys that the BIA intended to act on the Recognition Request by July 12 —

and apparently assuming the BIA would approve the Recognition Request. ECF No. 8, p. 2. The

Court denied the ex parte application on July 5, without prejudice to the refiling of a properly

noticed motion. ECF No. 9.

The Burleys filed the operative motion for stay of the 2015 Decision on July 8, 2016, with

a hearing date of August 8 (ECF No. 12), along with an ex parte application for an order

shortening time to hear the motion (ECF No. 13). On July 14, the Court denied the application for

an order shortening time, ruling that the Burleys had not made a sufficient showing of necessity.

ECF No. 17. On July 21, the Burleys re-noticed their motion for stay with a new hearing date of

September 6, 2016. ECF No. 18.

The Burleys’ Complaint (ECF No. 1) and First Amended Complaint (ECF No. 4) did not

name the Tribal Council or its members as parties. A motion to intervene has been filed

concurrently with this opposition on behalf of the Tribe, the Tribal Council and the Council

members.


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III. LEGAL STANDARDS

Although styled as a motion for stay of the 2015 Decision, the Burleys’ motion seeks more

than that — it seeks injunctive relief to prevent the BIA from making a decision on the Tribal

Council’s Recognition Request. See Nken v. Holder, 556 U.S. 418, 429, 129 S.Ct. 1749 (2009) (a

stay “temporarily divest[s] an order of enforceability,” while an injunction “tells someone what to

do or not to do”).11 The difference is immaterial because the same standard guides the court’s

decision whether to grant a stay or an injunction. See id. at 434 (citing Winter v. Natural

Resources Defense Council, Inc., 555 U.S. 7, 129 S.Ct. 365 (2008); see also id. at 443 (J. Alito,

dissenting).

A. Injunctive relief

A preliminary injunction (like a stay) is an “extraordinary remedy that may only be

awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter, supra, 555 U.S.

at 22. It is never a matter of right, even if irreparable injury might otherwise result. Nken, 556

U.S. at 433-434. The Burleys bear the burden of showing they are “likely to succeed on the

merits,” they are “likely to suffer irreparable harm in the absence of preliminary relief,” the

balance of equities tips in their favor, and an injunction is in the public interest. Winter, 555 U.S.

at 20 (italics added). Winter rejected the idea that the mere possibility of irreparable harm can

justify an injunction; irreparable injury must be likely. Id. at 22.

If granted, “[a]n injunction should be tailored to eliminate only the specific harm alleged,”

Skydive Arizona, Inc., v. Quattrochi, 673 F.3d 1105, 1116 (9th Cir. 2012) (quotation marks and

citation omitted), and “should be no more burdensome to the defendant than necessary to provide

complete relief.” Columbia Pictures Indus., Inc. v. Fung, 710 F.3d 1020, 1049 (9th Cir. 2013)

(quoting L.A. Haven Hospice, Inc. v. Sebelius, 638 F.3d 644, 664 (9th Cir. 2011)). “An overbroad

11 The 2015 Decision does not recognize the Tribe’s 2013 Constitution or mandate that the BIA do so — it explicitly declines to recognize any Tribal government and leaves it to the Regional Director to determine whether sufficient evidence exists to justify federal recognition of the 2013 Constitution. 2015 Decision at 5-6. Thus, recognition of the 2013 Constitution and Tribal Council would not merely “implement” the 2015 Decision. See ECF No. 10, p. 5.


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injunction is an abuse of discretion.” Stormans, Inc., v. Selecky, 586 F.3d 1109, 1140 (9th Cir.

2009) (quotation marks and citation omitted).

B. Judicial review of federal agency action

The Court reviews the merits of the Burleys’ challenge to the 2015 Decision under the

Administrative Procedure Act, which compels federal courts to uphold agency actions unless they

are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

5 U.S.C. § 706(2)(A). Under this standard, the court will affirm an agency action “if the agency

has articulated a rational connection between the facts found and the conclusions made.” San Luis

& Delta-Mendota Water Auth. v. Locke, 776 F.3d 971, 994 (9th Cir. 2014) (quotation marks and

citation omitted). The arbitrary or capricious standard is a “deferential standard of review under

which the agency’s action carries a presumption of regularity.” Id. Courts “must not substitute

[their] judgment for that of the agency, but instead must uphold the agency decision so long as the

agency has considered the relevant factors and articulated a rational connection between the facts

found and the choice made.” Selkirk Conservation Alliance v. Forsgren, 336 F.3d 944, 953-954

(9th Cir. 2003) (citation omitted).

IV. ARGUMENT

The Burleys make little effort to meet their burden, offering three scant pages of

conclusory argument that fails to establish even one of the injunctive relief factors is met here —

let alone all four. See Memorandum of Points and Authorities, ECF No. 10, pp. 8-11 (MPA).

Most of their arguments on the merits address the district court’s rejection of the 2011 Decision in

Miwok III— not the validity of the 2015 Decision. The only alleged harm they identify is

speculative, as they assume the BIA will recognize the 2013 Constitution and Tribal Council, and

that the California Gambling Control Commission will then release funds to the Tribal Council.

Even if those events were certain to occur, the Burleys identify no legitimate interest in

preventing the Tribe’s federally recognized government from accessing funds held in trust for the

Tribe (not for the Burleys), and they fail to give any weight to the harm the Tribe and its members

will suffer from further delay in reestablishing a government-to-government relationship with the

United States and gaining access to funds for essential Tribal services and programs. Finally, the


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Burleys ignore the strong public interest in respecting tribal sovereignty and protecting

majoritarian values against power grabs by “rogue” factions like the Burleys. See Aguayo v.

Jewell, No. 14-56909, slip op. at 20, 27 (9th Cir. 2009) (citing Miwok II, 515 F.3d 1262).

A. The Burleys have not shown they are likely to succeed on the merits.

The Burleys claim the 2015 Decision was “erroneous as a matter of law” because (i) the

purported enrollment of the Burleys as Tribal members in 1998 was not fraudulent and did not

compromise the interests of Yakima Dixie, his brother Melvin Dixie or other “unenrolled potential

members;” and (ii) the 2015 Decision should have recognized the “general council” created by the

1998 Resolution, which the BIA recognized for several years after 1998. Both arguments lack

merit.

1. The purported enrollment of the Burleys in 1998 has no bearing on the validity of the 2015 Decision.

The district court in Miwok III ruled that the 2011 Decision “missed the first step in the

analysis” by assuming the Tribe’s membership was limited to five people consisting of Yakima

Dixie and the four Burleys. Miwok III, 5 F.Supp.3d at 98-99. She first found it unreasonable for

the BIA to conclude that the Tribe’s membership was “limited to only Yakima in 1998 (and the

Burleys after Yakima enrolled them),” in light of a record “replete with evidence” that a much

larger Tribal community existed at that time. Id. at 98-99. She then found that, even if Yakima

Dixie had been the only Tribal member in 1998, the 2011 Decision failed to explain why the BIA

did not have an obligation to ensure that Burley was not “taking advantage of Yakima when she

sought membership for her family” or why the purported enrollment did not compromise Melvin

Dixie’s interests. Id. at 99. The court remanded to the BIA for reconsideration of “whether the

membership had been properly limited to these five individuals [i.e., the Burleys and Yakima

Dixie].” Id. at 99.

On remand, the Assistant Secretary concluded that, for purposes of organization, the

Tribe’s membership was not limited to only five people but should be defined by the Tribe

through an organization process open to the Eligible Groups and the 1929 Census descendants

(2015 Decision at 3-5) — i.e., the larger Tribal community. See Miwok III, 5 F.Supp.3d at 98.


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Given that conclusion, it is irrelevant whether the Burleys’ purported enrollment in 1998

prejudiced the interests of Yakima and Melvin Dixie (see MPA at 8-9) — indeed, the 2015

Decision accepts that it did not. 2015 Decision at 4 n.20. Whether or not the Burleys were

properly enrolled, they and Yakima Dixie were not a majority of those eligible to participate in

Tribal organization and could not form a Tribal government or determine the Tribe’s membership

without involving the rest of the Tribal community. 2015 Decision at 5.

The Burleys’ related claim that the rest of the Tribal community were only “unenrolled

potential members” who should have applied to the Burleys’ general council for membership

(MPA at 9-10) fails because it merely repeats the “circular argument” rejected by the district court

in Miwok III. 5 F.Supp.3d at 98 n.14 (rejecting the distinction between “citizens and ‘potential’

citizens of the Tribe” because it assumes that five people had the “exclusive authority to determine

citizenship of the Tribe”).12 The Burleys have again “missed the first step in the analysis.” Id.

at 99.

2. The 1998 Resolution did not establish a valid Tribal government.

The Burleys claim the 2015 Decision should have recognized the general council created

by the 1998 Resolution because the BIA previously recognized and provided federal funds to that

council, causing the Burleys to develop settled expectations that the boondoggle would continue.

MPA at 10. But the BIA’s initial support of the Burleys’ interim council, which ended in 2005,

cannot convert the Burleys’ “antimajoritarian gambit” into a legitimate Tribal government.

Miwok II, 515 F.3d at 1267. The 2015 Decision explained that the 1998 council initially may have

seemed a reasonable way to manage the process of Tribal organization but that “actual

reorganization of the Tribe can be accomplished only via a process open to the whole tribal

community” — a standard the 1998 Resolution cannot meet since it was approved by only two

people, while the Tribal community numbers in the hundreds. 2015 Decision at 5; see Miwok III,

5 F.Supp.3d at 98.

12 The Burleys do not challenge the Assistant Secretary’s determination that the Eligible Groups and the 1929 Census descendants make up the “Mewuk Indians for whom the Rancheria was acquired and their descendants.” 2015 Decision at 4.


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The Assistant Secretary’s conclusion is rational and consistent with all three Miwok

opinions. The BIA initially recognized the Burleys’ 1998 general council on an interim basis and

provided it with federal funds under the Indian Self Determination Act for the purpose of

organizing the Tribe, but at least by 2004 it had become clear that the Burleys had no intention of

involving the Tribal community in organization. Miwok I, 424 F.Supp.2d at 200. The BIA

rejected the governing documents the Burleys submitted, Miwok II, 515 F.3d at 1265-1266, and in

2005 rescinded its interim recognition of Burley and the general council. Miwok III, 5 F.Supp.3d

at 93-94 (the BIA “does not recognize any tribal government” for the Tribe).

The Burleys argued then that, “at least since June 25, 1999, the BIA has recognized [their]

government … and that the BIA is now trying to reverse that position.” Miwok I, 424 F.Supp.2d

at 201. But the district court upheld the BIA’s decision as fulfilling its duty to ensure that Tribal

“governing documents reflect the will of a majority of the Tribe’s members.” Id. at 202. The

D.C. Circuit affirmed, holding that tribal organization “must reflect majoritarian values.”

515 F.3d at 1267-1268.

When the BIA made a “180-degree change of course” away from majoritarian values and

issued the 2011 Decision recognizing the 1998 general council as the Tribe’s government, the

district court in Miwok III found the 2011 Decision “unreasonable” in light of the record.

5 F.Supp.3d at 99-100. On remand, the Assistant Secretary reconsidered and determined the BIA

“cannot recognize the actions to establish a tribal governing structure taken pursuant to the 1998

Resolution” because the people who approved the resolution “are not a majority of those eligible

to take part in the reorganization of the Tribe.” 2015 Decision at 5. After 10 years and three

published federal court opinions, the Burleys could not have had any reasonable expectation that

the BIA would decide otherwise.

B. The Burleys have not shown they are likely to suffer imminent and irreparable harm absent a stay.

The Burleys’ motion seeks to enjoin the BIA from recognizing the Tribal Council as the

Tribe’s government, in order to prevent the California Gambling Control Commission from

distributing to the Tribal Council funds held in trust for the Tribe. MPA at 7. The Burleys have


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not shown that release of the funds is imminent or that it would harm them irreparably, and their

nearly six-month delay in challenging the 2015 Decision undercuts any claim that imminent injury

will flow from that Decision.

1. Release of the funds is not imminent.

“[A] preliminary injunction will not be issued simply to prevent the possibility of some

remote future injury.” Winter, supra, 555 U.S. at 21 (citation and quotation marks omitted).

Plaintiff must demonstrate “immediate threatened harm.” Caribbean Marine Services Co., Inc. v.

Baldrige, 844 F.2d 668, 674 (9th Cir. 1988). See also Midgett v. Tri–County Metro. Transp. Dist.

of Oregon, 254 F.3d 846, 850–851 (9th Cir. 2001) (risk of irreparable harm in the indefinite future

is not sufficient). The Burleys have not met their burden.

The Burleys state that before the Gambling Control Commission can consider releasing

funds to the Tribal Council, the BIA must recognize the Council as the Tribe’s government. MPA

at 6. The Burleys claim the BIA’s June 9, 2016 letter set a July 12, 2016 deadline for the BIA to

act on the Tribal Council’s Recognition Request, but the letter did no such thing — it merely

asked the Burleys to submit comments by that date. ECF No. 11, Exhibit 1. July 12 has come and

gone, and the BIA has not acted on the Recognition Request or set a timetable for action. Nor is

the BIA certain to approve the Recognition Request when it does act, as the Burleys assume (see

MPA at 5). The BIA will not recognize a Tribal government until it is satisfied that the Tribe’s

“representatives, with whom [it] must conduct government-to-government relations, are valid

representatives of the [Tribe] as a whole.” Miwok II, 515 F.3d at 1267 (quotation marks and

citation omitted; italics in original).

Even if the Regional Director approves the Recognition Request, her decision will be

subject to appeal within the Department of the Interior — only an approval by the Assistant

Secretary would be “final for the Department and effective immediately.” 25 C.F.R.

§§ 2.4(e), 2.6(a), (e). An appeal would carry an automatic stay of the Regional Director’s

approval. See 25 C.F.R. §2.6(b); Yakama Nation v. Northwest Regional Director Bureau of

Indian Affairs, 47 IBIA 117, 119 (2008). Even after any appeal is decided, the Commission still

must decide whether to release the funds while litigation over the Tribe’s government is pending.


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See generally California Valley Miwok Tribe v. California Gambling Control Comm'n, 231 Cal.

App. 4th 885 (2014), review denied (Mar. 11, 2015) (Miwok IV). Thus, the Burleys’ request is

both premature and unnecessary.

2. Release of the funds would not cause irreparable harm.

The Burleys fail to explain how releasing Tribal funds to the Tribal Council would cause

them any harm — let alone irreparable injury. The funds the Gambling Control Commission holds

in trust for the Tribe belong to the Tribe itself, not the Burleys. See Miwok IV, 231 Cal. App. 4th

at 910-911. The Burleys do not represent the Tribe, and the fact that the BIA dealt with the

Burleys prior to 2005 does not give them any claim on the funds. Id. (denying Burleys’ attempt to

force the Commission to pay the Tribe’s funds to them). Thus, the Burleys have no legal interest

in the funds that could be injured by release of the funds to the Tribe or the Tribal Council.

Even if the Burleys could assert the Tribe’s interest in the funds (they can’t), they have not

explained how the Tribe’s interests would be harmed by release of the funds to a Tribal

government recognized as legitimate by the United States, or how any claimed injury would be

irreparable — i.e., not compensable by money damages. “Monetary injury generally does not

constitute irreparable injury.” A Woman's Friend Pregnancy Res. Clinic v. Harris, 153 F.Supp.3d

1168, *30 (E.D. Cal. 2015) (citing LA Mem'l Coliseum Comm'n v. Nat'l Football League, 634 F.2d

1197, 1202 (9th Cir. 1980)).13 And the Burleys have not even attempted to show that the Tribe

would be unable to recover if the Gambling Control Commission erroneously released Tribal

funds. See Miwok IV, 231 Cal.App.4th at 906 (Commission, as a trustee of Tribal funds, would be

liable under state law if it paid the funds to an unauthorized recipient).

C. The balance of equities favors Intervenors.

The Burleys breezily dismiss the balancing of equities, claiming “none of the parties or any

other person will be harmed by a stay” because the Gambling Control Commission will continue

to hold the accrued funds that belong to the Tribe. MPA at 10-11. They ignore the ongoing harm

13 A Woman’s Friend recognizes an exception where later monetary recovery might be precluded by state sovereign immunity, but that exception does not apply here. 153 F.Supp.3d 1168 at *30.


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to the Tribe and its members from the lack of a government-to-government relationship with the

United States, and the resulting lack of access to federal and state funding for essential services

and assistance to Tribal members including health care, legal assistance, and economic

development programs. Decl. of V. WhiteBear, ¶ 13. See Goodface v. Grassrope, 708 F.2d 335,

338–339 (8th Cir. 1983) (BIA’s failure to recognize either of two tribal factions created a “hiatus

in tribal government which jeopardized the continuation of necessary day-to-day services on the

reservation”).

In contrast, there will be no harm to the Burleys if the Court denies a stay. As explained

above, the Burleys have no interest in the funds held in trust for the Tribe, and the possible

recognition of the Tribal Council would not harm the Burleys given that they have not been

recognized as the Tribe’s government in more than 10 years.14

D. An injunction is not in the public interest.

The Burleys also ignore the public interest factor, claiming (without explanation) it is not

implicated because the case affects “an Indian tribe and its members.” MPA at 11. But there is a

strong public interest in avoiding “unnecessary intrusion in tribal self-governance” and allowing

federally recognized tribes to exercise their sovereignty. Aguayo, supra, No. 14-56909, slip op.

at 13. Likewise, the United States has a strong interest, in light of its “unique trust obligation to

Indian tribes,” in promoting majoritarian values. Miwok II, 515 F.3d at 1267 (citations omitted).

Further delaying recognition of a Tribal government that reflects the will of the entire Tribal

community, as required by the 2015 Decision, would not serve those interests. See id.

E. The Burleys’ requested relief is overbroad

Even if the Burleys were entitled to injunctive relief — which they have failed to show —

their attempt to prevent the BIA from considering and acting on the Tribal Council’s Recognition

Request still would be overbroad and ill-tailored to the harm they allege. See Skydive Arizona,

14 To the extent the Burleys have an interest in participating in the Tribe, a decision recognizing the Tribal Council would not prejudice that interest. The 2015 Decision encourages the Burleys to participate in Tribal organization as part of the larger Tribal community, 2015 Decision at 5, but so far they have declined to do so. Recognition Request, Attachment 2, pp. 13-15.


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supra, 673 F.3d at 1116 (injunction should be narrowly tailored). If the Burleys seek to prevent

erroneous release of Tribal funds by the California Gambling Control Commission, the proper

vehicle would be a suit for relief against the Commission — something the Burleys are no stranger

to — if and when the Tribal Council seeks access to the funds. See Miwok IV, 231 Cal. App.

4th 885. Halting the BIA’s administrative process and imposing a freeze on this Tribe’s

relationship with the United States would be unnecessarily burdensome and improper. See

Columbia Pictures Indus., supra, 710 F.3d at 1049.

F. The Assistant Secretary chose not to stay the 2015 Decision.

The Burleys suggest this Court should stay the 2015 Decision “[i]n the same way the [2011

Decision] was stayed pending resolution of the federal litigation” in Miwok III. MPA at 6. But

the district court did not stay the 2011 Decision—the Assistant Secretary did, in the Decision

itself. Corrales Decl., Exhibit 9, p. 8. See also Miwok III, 5 F.Supp.3d at 96; 25 C.F.R. § 2.6(c)

(decisions of the Assistant Secretary are final and effective immediately “unless … provide[d]

otherwise in the decision”). The fact that the Assistant Secretary voluntarily stayed the 2011

Decision and chose not to stay the 2015 Decision argues against a court-imposed stay here, not in

favor.

V. CONCLUSION

The Burleys’ attempt to enjoin the BIA from recognizing a Tribal government is

premature, overbroad and would cause irreparable harm to the Tribe and its members. The

Burleys have already crippled the Tribe’s efforts at self-governance and its relationship with the

United States for more than a decade. They should not be allowed to prevent the Tribe from

restoring that relationship while they prosecute yet another groundless lawsuit. The Court should

deny the motion for stay.


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Dated: August 8, 2016

ROBERT J. URAM JAMES F. RUSK SHEPPARD, MULLIN, RICHTER & HAMPTON LLP Attorneys for Intervenor-Defendants By /s/ James F. Rusk

JAMES F. RUSK


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CERTIFICATE OF SERVICE

I hereby certify that on August 8, 2016, I electronically filed the foregoing Opposition to

Plaintiffs’ Motion for an Order Staying AS-IA’s December 30, 2015 Decision with the Clerk of

the Court by using the CM/ECF system, and thus served the following counsel of record who are

registered ECF users:

• Manuel Corrales, Jr. [email protected]

Having obtained prior written consent, I served the following counsel for the named

defendants by electronic mail:

• Jody H. Schwarz [email protected]

Respectfully submitted,

/s/ James F. Rusk JAMES F. RUSK

SHEPPARD, MULLIN, RICHTER & HAMPTON LLP Attorneys for Intervenor-Defendants


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