Burt Lake Band of Ottawa & Chippewa Indians v. Zinke

• Decision Date: 29 March 2018
• Docket Number: Civil Action No. 17–0038 (ABJ)
• Citation: 304 F.Supp.3d 70
• Parties: BURT LAKE BAND OF OTTAWA AND CHIPPEWA INDIANS, Plaintiff, v. Ryan ZINKE, In His Official Capacity as Secretary of the Department of the Interior, et al., Defendants.
• Court: U.S. District Court — District of Columbia

304 F.Supp.3d 70

BURT LAKE BAND OF OTTAWA AND CHIPPEWA INDIANS, Plaintiff,

v.Ryan ZINKE, In His Official Capacity as Secretary of the Department of the Interior, et al., Defendants.

Civil Action No. 17–0038 (ABJ)

United States District Court, District of Columbia.

Signed March 29, 2018

John F. Cooney, Moxila A. Upadhyaya, Bartholomew T. Stupak, Pro Hac Vice, Venable LLP, Washington, DC, for Plaintiff.

Devon Lehman McCune, U.S. Department of Justice, Denver, CO, for Defendants.

MEMORANDUM OPINION

AMY BERMAN JACKSON, United States District Judge

Plaintiff Burt Lake Band of Ottawa and Chippewa Indians (formerly known as the Cheboygan Band) describes itself as "the last ‘landless’ tribe in Michigan." Am. Compl. [Dkt. # 11] ¶ 11. This case arises out of the fact that plaintiff has been seeking formal federal recognition, which would give the Burt Lake Band (or "the Band") a number of rights and benefits, since at least 1935. Plaintiff has brought this action against Ryan Zinke, in his official capacity as Secretary of the Interior; John Tahsuda III in his official capacity as the Acting Assistant Secretary for Indian Affairs for the Department of the Interior;¹ and the United States Department of Interior ("DOI"), alleging violations of the Administrative Procedure Act ("APA"), 5 U.S.C. § 500 et seq. , the Due Process Clause and the Equal Protection Clause of the Fifth Amendment of the United States Constitution, and the Federally Recognized Indian Tribe List Act, 25 U.S.C § 5130 et seq. , in connection with two events: the agency's failure to issue a decision on a petition for recognition that was filed in 1935, and the agency's 2015 promulgation of regulations which preclude the Band from re-petitioning the agency for recognition under 25 C.F.R. § 83. The defendants have moved to dismiss all of the claims, and for the reasons that follow, the Court will grant the motion in part and deny it in part: the Court will dismiss Counts II and III because they are barred by the statute of limitations; it will deny the motion to dismiss Counts IV, V, and VI because plaintiff does have standing to bring them; and it will dismiss Count VII for failure to state a claim on which relief can be granted. Plaintiff has withdrawn Count I.²

BACKGROUND

The complaint sets out a rather remarkable and undisputed history of inaction. In 1935, a group of the Band's ancestors petitioned the Bureau of Indian Affairs ("BIA") within the Department of Interior to be recognized under the Indian Reorganization Act of 1934. Am. Compl. ¶ 13. The agency has never issued a final decision on the 1935 Petition. Id. ¶¶ 74–85. In 1985, the Band filed another petition. Id. ¶ 99. The 1985 petition went unanswered for more than 20 years, until it was denied in 2006. Id. ¶ 107. Plaintiff did not seek review of the 2006 decision.

In 2014, the Bureau of Indian Affairs initiated a rulemaking to reform the federal recognition process, and it solicited comments on a proposed rule that would revise the existing regulations. Fed. Acknowledgment of Am. Indian Tribes, 79 Fed. Reg. 30766 (proposed May 29, 2014) (to be codified at 25 C.F.R. pt. 83) ("Proposed Rule"). One of the provisions in the proposal sent out for notice and comment, would have allowed Tribes to re-petition the agency for recognition under certain circumstances. Id. Ultimately, the agency chose not to adopt that provision, stating that "allowing for re-petitioning by denied petitioners would be unfair to petitioners who have not yet had a review," and identifying other efficiency concerns. Fed. Acknowledgment of Am. Indian Tribes, 80 Fed. Reg. 37862, 37875 (July 1, 2015) (to be codified at 25 C.F.R. pt 83) ("2015 Regulations").

Plaintiff filed this lawsuit on January 9, 2017, Compl. [Dkt. # 1], and filed an amended complaint on June 1, 2107. Am. Compl. The amended complaint includes seven constitutional and statutory claims. Counts I, II, and III challenge the agency's failure to issue a final decision on the 1935 Petition under the APA, the Due Process Clause, and the Equal Protection Clause of the 5th Amendment. Counts IV, V, and VI challenge the agency's 2015 Regulations under the APA, the Due Process Clause, and the Equal Protection Clause. The final count, Count VII, invokes the Federally Recognized Indian Tribe List Act and demands that the Court order the Secretary to place the Band on the List. Based on these claims, plaintiff seeks the following relief:

1) An order directing the agency "to adjudicate the 1935 IRA Petition;"

2) A declaration that the 2015 Regulations are "unlawful, unconstitutional, and unenforceable;"

3) An order directing the agency to "consider and adjudicate a supplemental petition from the Band for recognition;"

4) An order directing the agency to place plaintiff on the "Federally Recognized Indian Tribe List;" and

5) Other "relief as the Court deems just, proper, and equitable."

Am. Compl. "Prayer for Relief" ¶¶ 1–5.

Defendants moved to dismiss Counts I–III on statute of limitation grounds, Counts IV–VI for lack of standing, and Count VII for failure to state a claim upon which relief can be granted. Defs.' Mot. to Dismiss [Dkt. # 13]; Defs.' Mem. of P. & A. in Supp. of Mot. to Dismiss [Dkt. # 13] (collectively, "Defs.' Mot.") at 2. Plaintiff withdrew Count I, agreeing that the APA does not apply retroactively, but it has otherwise opposed the motion. Pl.'s Opp. to Defs.' Mot. [Dkt. # 14] ("Pl.'s Opp.") at 3. Defendants filed a reply. Reply Brief in Supp. of Defs.' Mot. [Dkt. # 15].

STANDARD OF REVIEW

In evaluating a motion to dismiss under either Rule 12(b)(1) or 12(b)(6), the Court must "treat the complaint's factual allegations as true ... and must grant plaintiff ‘the benefit of all inferences that can be derived from the facts alleged.’ " Sparrow v. United Air Lines, Inc. , 216 F.3d 1111, 1113 (D.C. Cir. 2000), quoting Schuler v. United States , 617 F.2d 605, 608 (D.C. Cir. 1979) (citations omitted). Nevertheless, the Court need not accept inferences drawn by the plaintiff if those inferences are unsupported by facts alleged in the complaint, nor must the Court accept plaintiff's legal conclusions. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002).

A. Subject Matter Jurisdiction under Rule 12(b)(1)

Federal Rule of Civil Procedure 12(b)(1) provides for dismissal of a claim for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). The plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence. See Lujan v. Defs. of Wildlife , 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ; Shekoyan v. Sibley Int'l Corp. , 217 F.Supp.2d 59, 63 (D.D.C. 2002). Federal courts are courts of limited jurisdiction and the law presumes that "a cause lies outside this limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) ; see also Gen. Motors Corp. v. EPA , 363 F.3d 442, 448 (D.C. Cir. 2004) ("As a court of limited jurisdiction, we begin, and end, with an examination of our jurisdiction."). "[B]ecause subject-matter jurisdiction is ‘an Art[icle] III as well as a statutory requirement ... no action of the parties can confer subject matter jurisdiction upon a federal court.’ " Akinseye v. District of Columbia , 339 F.3d 970, 971 (D.C. Cir. 2003), quoting Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee , 456 U.S. 694, 702, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982).

When considering a motion to dismiss for lack of jurisdiction, unlike when deciding a motion to dismiss under Rule 12(b)(6), the court "is not limited to the allegations of the complaint." Hohri v. United States , 782 F.2d 227, 241 (D.C. Cir. 1986), vacated on other grounds , 482 U.S. 64, 107 S.Ct. 2246, 96 L.Ed.2d 51 (1987). Rather, "a court may consider such materials outside the pleadings as it deems appropriate to resolve the question [of] whether it has jurisdiction to hear the case." Scolaro v. D.C. Bd. of Elections & Ethics , 104 F.Supp.2d 18, 22 (D.D.C. 2000), citing Herbert v. Nat'l Acad. of Scis. , 974 F.2d 192, 197 (D.C. Cir. 1992) ; see also Jerome Stevens Pharms., Inc. v. FDA , 402 F.3d 1249, 1253 (D.C. Cir. 2005).

B. Failure to State a Claim under Rule 12(b)(6)

"To survive a [ Rule 12(b)(6) ] motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In Iqbal , the Supreme Court reiterated the two principles underlying its decision in Twombly . "First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions," and "[s]econd, only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. at 678–79, 129 S.Ct. 1937, citing Twombly , 550 U.S. at 555–56, 127 S.Ct. 1955.

A claim is facially plausible when the pleaded factual content "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678, 129 S.Ct. 1937, citing Twombly , 550 U.S. at 556, 127 S.Ct. 1955. "The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. , quoting Twombly , 550 U.S. at 556, 127 S.Ct. 1955. A pleading must offer more than "labels and conclusions" or a "formulaic recitation of the elements of a cause of action," id. , quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955, and "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. , citing Twombly , 550 U.S. at 555, 127 S.Ct. 1955.

When considering a motion to dismiss under Rule 12(b)(6), the Court is bound to construe a complaint liberally in the plaintiffs favor, and it should grant the plaintiff ...