1 F.3d 1052 (10th Cir. 1993), 92-4062, Western Shoshone Business Council For and on Behalf of Western Shoshone Tribe of Duck Valley Reservation v. Babbitt

Docket Nº:92-4062.
Citation:1 F.3d 1052
Party Name:WESTERN SHOSHONE BUSINESS COUNCIL, for and on behalf of the WESTERN SHOSHONE TRIBE OF THE DUCK VALLEY RESERVATION; Edwards, McCoy & Kennedy, P.C., Plaintiffs-Appellants, v. Bruce E. BABBITT, Secretary of the United States Department of the Interior, Defendant-Appellee.
Case Date:July 27, 1993
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1052

1 F.3d 1052 (10th Cir. 1993)

WESTERN SHOSHONE BUSINESS COUNCIL, for and on behalf of the

WESTERN SHOSHONE TRIBE OF THE DUCK VALLEY

RESERVATION; Edwards, McCoy & Kennedy,

P.C., Plaintiffs-Appellants,

v.

Bruce E. BABBITT, Secretary of the United States Department

of the Interior, Defendant-Appellee.

No. 92-4062.

United States Court of Appeals, Tenth Circuit

July 27, 1993

Page 1053

John Paul Kennedy, Salt Lake City, UT, for plaintiffs-appellants.

Ellen J. Durkee, Atty., Environment & Natural Resources Div., Dept. of Justice,

Page 1054

Washington DC (Roger Clegg, Asst. Atty. Gen., David J. Jordan, U.S. Atty., and Stephen Roth, Asst. U.S. Atty., Salt Lake City, UT, Jim Upton and John A. Bryson, Attys., Environment & Natural Resources Div., Dept. of Justice, Washington, DC; of counsel: Scott Keep, Office of the Sol., Dept. of the Interior, Washington, DC, and Wayne Nordwall, Office of the Field Sol., Dept. of the Interior, Phoenix, AZ, with her on the brief), for defendant-appellee.

Before LOGAN, RONEY [*] and SEYMOUR, Circuit Judges.

LOGAN, Circuit Judge.

Plaintiffs, the Western Shoshone Business Council (Council), suing for and on behalf of the Western Shoshone Tribe of the Duck Valley Reservation (Western Shoshones), and the law firm Edwards, McCoy & Kennedy (EM & K), appeal the decision of the district court granting defendant Secretary of the Interior's motion to dismiss and denying plaintiffs' motions for leave to file an amended complaint.

In 1989, the Council approved a contract with EM & K for legal services and submitted it to the Acting Area Director of the Bureau of Indian Affairs (BIA) for approval, pursuant to 25 U.S.C. Sec. 81. 1 The Acting Area Director determined that because the Western Shoshones did not appear on a list of federally recognized tribes, 2 see 53 Fed.Reg. 52,829-02 (1988), the contract was between private parties and did not require BIA approval. This decision was later affirmed by the Interior Board of Indian Appeals (IBIA). Edwards, McCoy & Kennedy v. Acting Phoenix Area Director, 18 I.B.I.A. 454 (1990).

Plaintiffs then brought this action in district court seeking declaratory and injunctive relief setting aside defendant's refusal to review the contract and holding that the Western Shoshones are a federally recognized Indian tribe. The district court concluded that because they could pursue a procedure for becoming federally recognized, see 25 C.F.R. pt. 83, plaintiffs had failed to exhaust their administrative remedies and jurisdiction was therefore lacking.

The district court's determination regarding jurisdiction is a legal one, which we review de novo. Boise City Farmers Cooperative v. Palmer, 780 F.2d 860, 866 (10th Cir.1985). We are free to affirm a district court's decision on any grounds for which there is a record sufficient to support conclusions of law. Medina v. City & County of Denver, 960 F.2d 1493, 1495 n. 1 (10th Cir.1992).

I

Under the judicial review provisions of the Administrative Procedure Act, 5 U.S.C. Secs. 701-706, "[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review." Id. Sec. 704. The regulations regarding appeals from BIA decisions provide that a decision made by an Area Director may be appealed to the IBIA, 25 C.F.R. Sec. 2.4(e), and that the IBIA is the final authority for the Department of the Interior on administrative actions by BIA officials. 43 C.F.R.

Page 1055

Sec. 4.1(b)(2)(i). Plaintiffs pursued their appeal of defendant's refusal to review their contract to the highest authority available to them within the Department of the Interior. 3 Plaintiffs were not required to pursue any other administrative avenue before seeking judicial review of defendant's decision. For purposes of the APA, the IBIA decision was final agency action. That is only the first step, however, in our jurisdictional analysis.

II

We turn next to whether plaintiffs have standing to bring this appeal. Plaintiffs must meet both the constitutional requirements subsumed by the Article III "case or controversy" limitation on judicial power and the judicially created prudential requirements under the APA. See Association of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970).

The Supreme Court has summarized the constitutional limitations on standing as follows:

[A]t an irreducible minimum, Art. III requires the party who invokes the court's authority to show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant, and that the injury fairly can be traced to the challenged action and is likely to be redressed by a favorable decision.

Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982) (quotations and citations omitted).

Under Sec. 702 of the Administrative Procedure Act, "[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." Thus, a plaintiff claiming a right to sue under the APA must "identify some 'agency action' that affects him in the specified fashion; it is judicial review 'thereof' to which he is entitled." Lujan v. National Wildlife Fed'n, 497 U.S. 871, 882, 110 S.Ct. 3177, 3185, 111 L.Ed.2d 695 (1990). Then the prospective plaintiff must show that this agency action has caused him to suffer "legal wrong," or that he is "adversely affected or aggrieved" by that action. Id. at 883, 110 S.Ct. at 3186. Because a determination that a plaintiff has suffered legal wrong as the result of agency action goes to the merits, courts have focused on adverse effect or aggrievement in ascertaining standing under the APA.

Adverse effect or aggrievement, in turn, has been interpreted as requiring a plaintiff to show that "the interest sought to be protected ... is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question." Data Processing, 397 U.S. at 153, 90 S.Ct. at 829; see also Lujan, 497 U.S. at 883, 110 S.Ct. at 3186; Clarke v. Securities Indus. Ass'n, 479 U.S. 388, 396, 107 S.Ct. 750, 755, 93 L.Ed.2d 757 (1987).

A

Although EM & K has an interest that is arguably threatened by defendant's refusal to review its contract with the Council, it is clear that EM & K does not fall within the zone of interests protected or regulated under 25 U.S.C. Sec. 81. EM & K focuses on a portion of the Supreme Court's explanation of the zone of interests test in Clarke, that "there need be no indication of congressional purpose to benefit the would-be plaintiff," 479 U.S. at 399-400, 107 S.Ct. at 757, and reasons that because its right to...

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