Apache Stronghold v. United States

• Decision Date: 12 February 2021
• Docket Number: No. CV-21-00050-PHX-SPL,CV-21-00050-PHX-SPL
• Court: U.S. District Court — District of Arizona
• Parties: APACHE STRONGHOLD, Plaintiff, v. UNITED STATES of America, et al., Defendants.

519 F.Supp.3d 591

APACHE STRONGHOLD, Plaintiff,

v.UNITED STATES of America, et al., Defendants.

No. CV-21-00050-PHX-SPL

United States District Court, D. Arizona.

Signed February 12, 2021

Clifford Irwin Levenson, Clifford Levenson Attorney at Law, Phoenix, AZ, Michael V. Nixon, Pro Hac Vice, Michael V Nixon JD, Portland, OR, for Plaintiff.

Reuben S. Schifman, Tyler McVeigh Alexander, US Dept of Justice, Washington, DC, for Defendants.

ORDER

Steven P. Logan, United States District Judge

I. BACKGROUND

In 2014, Congress passed the National Defense Authorization Act for Fiscal Year 2015 (hereinafter "NDAA"). PL 113-291, available at https://www.congress.gov/113/plaws/publ291/PLAW-113publ291.pdf (last visited February 12, 2021). Section 3003 of the NDAA, known as the Southeast Arizona Land Exchange and Conservation Act, authorizes the exchange of land between the United States Government and two foreign mining companies (known collectively as "Resolution Copper

"). 16 U.S.C.A. § 539p. The 2,422-acre parcel of Arizona land which the Government will convey to Resolution Copper, located within the Tonto National Forest, includes a sacred Apache ceremonial ground called Chi'chil Bildagoteel, known in English as "Oak Flat." (Doc. 1 at ¶ 3). Congress's stated purpose for authorizing the exchange is to "carry out mineral exploration activities under the Oak Flat Withdrawal Area." 16 U.S.C.A. § 539p(6)(i).

On January 12, 2021, Plaintiff Apache Stronghold, a nonprofit organization seeking to prevent the colonization of Apache land, filed a Complaint in this Court seeking to prevent the land exchange. (Doc. 1 at ¶ 11). Plaintiff argues the land is held in trust by the United States for the Western Apaches by way of an 1852 Treaty. (Doc. 1 at ¶ 7). Plaintiff further alleges the mine will desecrate Oak Flat in violation of the Apaches’ religious liberties and will constitute a breach of the trust. (Doc. 1 at ¶ 10).

On January 14, 2021, Plaintiff filed a Motion for Temporary Restraining Order ("TRO") and Preliminary Injunction ("PI") seeking to prevent the United States Department of Agriculture from publishing a Final Environmental Impact Statement ("FEIS"), a document that "describes the potential environmental effects" of the mine and "includes detailed mitigation measures to minimize impacts." (Doc. 7); USDA Forest Service, Resolution Copper Update , available at https://www.fs.usda.gov/detail/r3/home/?cid=FSEPRD858166 (last accessed February 12, 2021). The FEIS was set for publication on the following day, January 15. (Doc. 7 at 3). Plaintiff alleges Defendants "nefariously" moved up the timeline of the FEIS publication, which was previously set for April of 2021, so the land transfer could finalize before President Biden's inauguration and without adequate time for Plaintiff to contest the sale. (Doc. 1 at ¶ 33, 36-39).

On January 14, 2021, this Court denied the Motion to the extent it sought an emergency TRO because Plaintiff could not show immediate and irreparable injury. (Doc. 13). Specifically, because Plaintiff could not show the land conveyance would occur immediately upon the publication of the FEIS, and in fact Defendants would have 60 days from the publication to complete the exchange, a TRO without notice and opportunity for response was unwarranted. (Doc. 13 at 4). The FEIS was published on January 15, 2021 as scheduled, starting the 60-day clock. See USDA, FINAL Environmental Impact Statement, Resolution Copper

Project and Land Exchange, available at https://www.resolutionmineeis.us/sites/default/files/feis/resolution-final-eis-vol-1.pdf (last visited February 12, 2021). The parties then fully briefed the Motion. (Docs. 7, 18, & 30). In their Response, the Government indicate that the land sale would not take place until 55 days after the publication of the FEIS (i.e. , no earlier than March 11, 2021). (Doc. 18-1 at 3-4). The Court held a hearing on the PI on February 3, 2021. (Doc. 37).

II. LEGAL STANDARD

A preliminary injunction is an "extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Titaness Light Shop, LLC v. Sunlight Supply, Inc. , 585 F. App'x 390, 391 (9th Cir. 2014) (quoting Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7, 22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) ). An injunction may be granted only where the movant shows that "he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Herb Reed Enters., LLC v. Fla. Entm't Mgmt., Inc. , 736 F.3d 1239, 1247 (9th Cir. 2013) (quoting Winter , 555 U.S. at 20, 129 S.Ct. 365 ). However, the four factors may be evaluated on a sliding scale under this Circuit's "serious questions" test: "[a] preliminary injunction is appropriate when a plaintiff demonstrates that serious questions going to the merits were raised and the balance of hardships tips sharply in the plaintiff's favor." All. for the Wild Rockies v. Cottrell , 632 F. 3d 1127, 1134-35 (9th Cir. 2011) (citing Lands Council v. McNair , 537 F.3d 981, 987 (9th Cir. 2008) (en banc)) (internal quotations omitted).

"Likelihood of success on the merits is the most important Winter factor; if a movant fails to meet this threshold inquiry, the court need not consider the other factors in the absence of serious questions going to the merits." Disney Enters., Inc. v. VidAngel, Inc. , 869 F.3d 848, 856 (9th Cir. 2017) (internal citations and quotations omitted); see also, e.g. , Krieger v. Nationwide Mut. Ins. Co. , No. CV-11-1059-PHX-DGC, 2011 WL 3760876, at *1 (D. Ariz. Aug. 25, 2011) ("Because Plaintiff has failed to show a likelihood of success on the merits or the existence of serious questions, the Court will not issue a preliminary injunction. The Court need not address the other requirements for preliminary injunctive relief.").

III. DISCUSSION

For the following reasons, the Court finds that Plaintiff has not demonstrated a likelihood of success on, or serious questions going to, the merits of its claims.

A. Breach of Trust/Fiduciary Duties

i. Standing

Plaintiff alleges the land at issue is managed by the Government in trust for the Western Apaches "as a result of official U.S. Government support of actions unilaterally removing the Western Apaches from that land and forcing them to struggle to continue to maintain their relationships to their land." (Doc. 1 at ¶ 51) (Count 3). Thus, Plaintiff argues the conveyance to Resolution Copper

is in breach of the Government's trustee and fiduciary duties.

As an initial matter, Plaintiff Apache Stronghold lacks standing to bring the breach of trust claim. The "irreducible constitutional minimum of standing consists of three elements ... [t]he plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision." Spokeo v. Robins , 578 U.S. 330, 136 S.Ct. 1540, 1547, 194 L.Ed.2d 635 (2016) (internal punctuation omitted) (citing Lujan v. Defenders of Wildlife , 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ; Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc. , 528 U.S. 167, 180–81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) ). Closely related to the constitutional standing requirement that a plaintiff must suffer a personal injury is the prudential requirement that a plaintiff "cannot rest his claim to relief on the legal rights or interests of third parties." Warth v. Seldin , 422 U.S. 490, 499, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). This limitation serves an important function: It prevents "the adjudication of rights which those not before the Court may not wish to assert" and seeks to ensure "that the most effective advocate of the rights at issue is present to champion them." Duke Power Co. v. Carolina Envtl. Study Grp., Inc. , 438 U.S. 59, 80, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978).

But "since the prohibition against a party asserting the legal rights of another is prudential—not constitutional—the Supreme Court may ‘recognize[ ] exceptions to this general rule.’ " Al–Aulaqi v. Obama , 727 F.Supp.2d 1, 15 (D.D.C. 2010) (alteration in original) (quoting Coal. of Clergy, Laws., & Professors v. Bush , 310 F.3d 1153, 1160 (9th Cir. 2002) ). For example, an organization may have standing to sue on behalf of its members—but only if "its members would otherwise have standing to sue in their own right." Hunt v. Wash. State Apple Advert. Comm'n , 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977) ; see also Ecological Rights Found. v. Pacific Lumber Co. , 230 F.3d 1141, 1147 (9th Cir. 2000). The issue here, then, is whether Apache Stronghold's members have standing.

Apache Stronghold argues "[t]here were no tribes in 1852 in any formal sense" and that, instead, there were "leaders representing ... dozens of groups of Apaches." (Doc. 47 at 25). Accordingly, Plaintiff argues "the Treaty of 1852 was between the United States and the Western Apache peoples, not with any particular Tribe." (Doc. 30 at 3). By extension, then, Apache Stronghold argues its individual members have standing to assert the Western Apaches’ treaty rights because they are direct descendants of Mangas Coloradus, "one of the Apache signatories to the 1852 Treaty," since they "are among the intended beneficiaries of [their] direct ancestor's agreement with the United States." (Doc. 30 at 3).¹ Plaintiff's arguments are unavailing.

"[T]he existence of a trust relationship between the United States and an Indian or Indian tribe includes as a fundamental incident the right of an injured beneficiary to sue the trustee for damages resulting from a breach of the trust." United States v. Mitchell , 463 U.S. 206, 226, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983). However, a treaty, by its very definition, "is ‘essentially a contract between two sovereign...