Alabama-Coushatta Tribe of Tex. v. United States

• Citation: 757 F.3d 484
• Decision Date: 09 July 2014
• Docket Number: No. 13–40644.,13–40644.
• Parties: The ALABAMA–COUSHATTA TRIBE OF TEXAS, Plaintiff–Appellant, v. UNITED STATES of America; Thomas James Vilsack, in his capacity as Secretary of the United States Department of Agriculture; Sally Jewell, in her capacity as Secretary of the United States Department of the Interior, Defendants–Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

757 F.3d 484

The ALABAMA–COUSHATTA TRIBE OF TEXAS, Plaintiff–Appellant,

v.UNITED STATES of America; Thomas James Vilsack, in his capacity as Secretary of the United States Department of Agriculture; Sally Jewell, in her capacity as Secretary of the United States Department of the Interior, Defendants–Appellees.

No. 13–40644.

United States Court of Appeals, Fifth Circuit.

July 9, 2014.

Scott David Crowell, Esq. (argued), Crowell Law Offices, Sedona, AZ, Andy Taylor, Esq., Andy Taylor & Associates, P.C., Brenham, TX, for Plaintiff–Appellant.

Matthew Littleton (argued), Trial Attorney, Stephen Richard Terrell, U.S. Department

of Justice, Washington, DC, for Defendants–Appellees.

Appeal from the United States District Court for the Eastern District of Texas.

Before STEWART, Chief Judge, DENNIS and ELROD, Circuit Judges.

CARL E. STEWART, Chief Judge:

The Alabama–Coushatta Tribe of Texas brought suit against the United States and various federal agencies alleging inter alia violations of the Administrative Procedures Act and federal common law. The district court granted the Government's motion to dismiss for lack of subject matter jurisdiction. Because we hold that the Tribe has failed to allege “agency action” sufficient to meet the standards required for waiver of the Government's sovereign immunity, we AFFIRM.

FACTS AND PROCEEDINGS

The Alabama–Coushatta Tribe of Texas (“Tribe”) is a federally-recognized Indian tribe. The Tribe asserts that it holds unextinguished aboriginal title ¹ to approximately 400,000 acres of land in the Big Thicket region of East Texas covering the Davy Crockett and Sam Houston National Forests and the Big Thicket National Preserve. For centuries, the Tribe has called this region home. In 2000, the Court of Federal Claims agreed with the Tribe that it holds aboriginal title to these lands.²See Alabama–Coushatta Tribe of Tex. v. United States, No. 3–83, 2000 WL 1013532 (Fed.Cl. June 19, 2000). The Court of Federal Claims issued a nonbinding recommendation to Congress that the federal government “violated its fiduciary obligations by knowingly failing to protect 2,850,028 acres of the Tribe's aboriginal lands” and that it should pay damages accordingly. See id. at *61–62. However, Congress has never acted on the Court of Federal Claims' recommendation. Meanwhile, the Tribe alleged, the United States, acting through various federal agencies, has continued to approve drilling leases and permits to third parties. This has allowed the exploitation of the natural resources on the land in derogation of the Tribe's aboriginal title.

The Tribe filed this action against the United States and various agencies (collectively “the Government”) claiming that the Government breached its fiduciary duty under federal law to protect the land and natural resources subject to the aboriginal title of the Tribe. The Tribe asserted that there was jurisdiction for the suit based on 28 U.S.C. §§ 1331 (federal question), 1362 (action by Indian tribe) ³ and brought causes of action pursuant to the Administrative Procedures Act (“APA”), the Nonintercourse Act, the Declaratory Judgment Act, and federal common law. The Tribe sought to stop the Government from taking actions that facilitate the wrongful trespass on the Tribe's lands and to force the Government to take the appropriate action to protect the Tribe's lands when the Government makes discretionary decisions impacting the land. Specifically, the Tribe challenged: (1) the National Park Service's issuance of permits to drill for oil or gas in the Big Thicket National Preserve; (2) the Forest Service's issuance of drilling permits for privately owned mineral estates located under the Sam Houston and Davy Crockett National Forests; (3) the Bureau of Land Management's issuance of oil and gas leases for land in the Sam Houston and Davy Crockett National Forests, and the collection of royalties and rent payments from these leases; and (4) the National Forest Service's exploitation and sale of timber resources from the Davy Crockett and Sam Houston National Forests.⁴ The Tribe made no other challenges to actions taken by the United States and its agencies.

The Tribe sought equitable relief, including declarations that the Government's actions in the past violated federal common law and the Nonintercourse Act and that in the future the Government must consider and accommodate the Tribe's aboriginal title; a permanent injunction; accounting of the revenues collected as a result of the Government's actions; and, if necessary, the appointment of a special master to make decisions regarding mineral rights on these lands. The Tribe did not seek monetary relief or the conveyance of the land at issue. Rather, the Tribe sought only to prevent the Government from continuing to breach its fiduciary duties in recent and pending discretionary administrative decisions with respect to federal land in the Tribe's territory. The Government filed a motion to dismiss the Tribe's lawsuit for lack of subject-matter jurisdiction, or in the alternative, for failure to state a claim upon which relief can be granted.

The district court referred the matter to the magistrate judge (“MJ”). The MJ issued a report and recommendation stating that the district court should grant the Government's motion to dismiss for lack of subject-matter jurisdiction because the Tribe made a programmatic challenge to the federal agencies' actions, and therefore, the actions were not reviewable under § 702. The MJ also recommended that the Tribe could not establish a breach of fiduciary duty based on the Nonintercourse Act, and that only the Government's wrongful, total extinguishment of aboriginal title, is actionable. The district court adopted the MJ's report and recommendation over the Tribe's objections.

DISCUSSION

We review a district court's grant of a motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) de novo. Willoughby v. U.S. ex rel. U.S. Dep't of the Army, 730 F.3d 476, 479 (5th Cir.2013), cert. denied, ––– U.S., ––––, 134 S.Ct., 1307, 188 L.Ed.2d 303 (2014). The Tribe, as the party asserting federal subject-matter jurisdiction, has the burden of proving that this requirement has been met. Id. When facing a challenge to subject-matter jurisdiction and other challenges on the merits, we must consider first the Rule 12(b)(1) jurisdictional challenge prior to addressing the merits of the claim. See id.

“Whether the United States is entitled to sovereign immunity is a question of law which this court reviews de novo.” Koehler v. United States, 153 F.3d 263, 265 (5th Cir.1998) (citation omitted). “It is well settled that the United States may not be sued except to the extent that it has consented to suit by statute.” Id. (citation omitted). Further, “[w]here the United States has not consented to suit or the plaintiff has not met the terms of the statute the court lacks jurisdiction and the action must be dismissed.” Id. at 266 (citation omitted). “[A] waiver of the Government's sovereign immunity will be strictly construed, in terms of its scope, in favor of the sovereign.” Lane v. Pena, 518 U.S. 187, 192, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996).

The Tribe seeks judicial review of the actions of various federal agencies pursuant to 28 U.S.C. § 1331 and § 1346. In order to maintain this action, there must be a waiver of sovereign immunity. See Koehler, 153 F.3d at 265. The only applicable waiver is from the APA, 5 U.S.C. § 702; therefore, the Tribe must prove that the requirements of § 702 have been met. See Willoughby, 730 F.3d at 479. Section 702 of the APA “waives sovereign immunity for actions against federal government agencies, seeking nonmonetary relief, if the agency conduct is otherwise subject to judicial review.” Sheehan v. Army & Air Force Exch. Serv., 619 F.2d 1132, 1139 (5th Cir.1980), rev'd on other grounds,456 U.S. 728, 102 S.Ct. 2118, 72 L.Ed.2d 520 (1982); see also Armendariz–Mata v. U.S. Dep't of Justice, 82 F.3d 679, 682 (5th Cir.1996) (“Congress intended to broaden the avenues for judicial review of agency action by eliminating the defense of sovereign immunity in cases covered by § 702....” (citation omitted)).⁵

In Sheehan, we agreed with the Third Circuit that Congress intended to waive immunity for non-statutory causes of action against federal agencies arising under 28 U.S.C. § 1331. Sheehan, 619 F.2d at 1139 (“We too ... hold that Congress did intend to waive the defense of sovereign immunity for nonstatutory review under section 1331”). Although Sheehan was ultimately reversed by the Supreme Court on other grounds, we continue to agree with this specific holding. See Rothe Dev. Corp. v. U.S. Dep't of Defense, 194 F.3d 622, 624 n. 2 (5th Cir.1999) (citing Sheehan as support for the fact that § 702 is a waiver of sovereign immunity for actions against federal government agencies, if the agency is otherwise subject to judicial review). Section 702's legislative history as illuminated by the Third Circuit in Jaffee v. United States, 592 F.2d 712, 718–19 (3d Cir.), cert. denied,441 U.S. 961, 99 S.Ct. 2406, 60 L.Ed.2d 1066 (1979) is particularly instructive on this point. Additionally, this holding is supported by a number of decisions in our sister circuits. See, e.g., Michigan v. U.S. Army Corps of Engineers, 667 F.3d 765, 775 (7th Cir.2011); Trudeau v. Federal Trade Comm'n, 456 F.3d 178, 186–87 (D.C.Cir.2006); United States v. City of Detroit, 329 F.3d 515, 520–21 (6th Cir.2003) (en banc).

Section 702 contains two separate requirements for establishing a waiver of sovereign immunity. See Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 882, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). First, the plaintiff must identify some “agency action” affecting him in a specific way, which is the basis of his entitlement for judicial review. Id, This “agency action” for the purposes of § 702 is set forth by 5 U.S.C. § 551(13) and is defined as “the whole...