Chase v. McMasters, A4-75-71.

Decision Date20 December 1975
Docket NumberNo. A4-75-71.,A4-75-71.
Citation405 F. Supp. 1297
PartiesBeulah CHASE, Plaintiff, v. Roland McMASTERS et al., Defendants.
CourtU.S. District Court — District of South Dakota

Thomas K. Schoppert, North Dakota Legal Services, New Town, N. D., for plaintiff.

Tom M. Beyer, Dickinson, N. D., for defendants.

MEMORANDUM AND ORDER

VanSICKLE, District Judge.

This is an action, laid under civil rights theories, for an order of this Court mandating the city government of New Town, North Dakota, to tie sewer and water into an urban lot held by the United States in trust under Title 25 United States Code § 465. The matter is presented on verified pleadings and affidavits on a motion for preliminary injunction.

The motion for preliminary injunction is denied.

Plaintiff is an enrolled Indian of the Three Affiliated Tribes. New Town is a federally sponsored city, laid out within the Fort Berthold Indian Reservation, to replace Sanish and Van Hook, which were inundated by the Garrison Reservoir.

Plaintiff and her husband, after retiring from their employment in California, moved back to New Town. Plaintiff has bought from the City of New Town Lot 16, Block 3, Highland Village Addition. This lot is serviceable by city water and sewer, and in fact $702.00 of the $1,302.00 paid for the lot included special assessments for water mains, sewer mains, and other municipal improvements. Plaintiff undertook to finance construction of her home through the Fort Berthold Housing Authority, which locally administered Housing and Urban Development (HUD) Loans. As a preliminary step, on June 23, 1975, Plaintiff transferred her lot to the United States to be held as Indian trust land pursuant to 25 United States Code § 465. She acted under the assumption that HUD required such a transfer in trust as a condition precedent to the granting of a loan for the construction of an Indian Mutual Help Unit. HUD has denied by letter (in affidavit attachments) that it imposes any such requirement. However, it does require that a cooperation agreement be executed between the municipality and the local agent of HUD before HUD will authorize the placement of any units on trust or fee land within a municipality. The purpose of the cooperation agreement is to assure that Indian Mutual Help Units are provided municipal services; and the quid pro quo is a guarantee of payment-in-lieu-of-taxes by HUD.

There is no showing of a good faith effort of HUD or its agent to negotiate such a cooperation agreement. Rationally, HUD, as the unit seeking the privilege, would seem to be the party who should initiate the negotiation.

Plaintiff moved a house trailer onto the lot in May of 1975. She anticipates, when the loan is approved, building a home on the lot. Meantime, if she wishes to live in the mobile home, she must do so without water or sewer. Plaintiff is receiving retirement income, and has professed her willingness to pay for all connection charges of both water and sewer and for the subsequent service charges that flow therefrom.

In the meantime, the City of New Town, cognizant of the trust status of the land, and of the fact it cannot levy special assessments on trust land or recover delinquent service charges from trust land by assessments collectible in the nature of taxes, as it can in the case of fee land (see N.D.C.C. §§ 40-24-01, 40-25-01, 40-34-05, and 40-22-01(1)), has refused to extend the services until this matter is resolved.

Plaintiff seeks a declaratory judgment that she is entitled to water and sewer service, preliminary and permanent injunctions restraining Defendants from preventing her from connection to water and sewer systems, and damages. Jurisdiction is alleged under 28 U.S.C. § 1343 and § 1331 for causes of action stated under 42 U.S.C. § 1983 and § 1985(3). A declaratory judgment is sought under 28 U.S.C. § 2201.

Plaintiff's complaint sets forth three different theories of recovery. Their validity or invalidity bears directly on whether a preliminary injunction should be issued.1

Plaintiff's first two theories of recovery are apparently laid under 42 U.S.C. § 1983 (1974), which reads:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

To determine whether Plaintiff has alleged a cause of action under § 1983, the following principles apply:

"The basic requirements of a § 1983 complaint are: (1) that complained conduct was under color of state law, and (2) that such conduct subjected plaintiff to a deprivation of rights, privileges or immunities secured by the Federal Constitution and laws."

Wilkerson v. City of Coralville, 478 F.2d 709, 710 (8th Cir. 1973). With respect to the second requirement of a § 1983 complaint, the Plaintiff "must allege facts showing that the defendants acted to deprive her of the rights, privileges, and immunities secured by the Fourteenth Amendment of the Constitution. Emphasis added." Spears v. Robinson, 431 F.2d 1089, 1091 (8th Cir. 1970), affirming Spears v. Mount Etna Morris, 313 F.Supp. 52 (W.D.Mo.1969).

The Defendants — a city mayor and city councilmen — are acting under color of state law. Thus, the first requirement to state a cause of action under § 1983 is present in each of Plaintiff's first two theories of recovery. The second requirement, though present in the first theory, is not present in the second theory.

Plaintiff's first theory of recovery alleges a denial of equal protection in that the Defendants "have singled out the Plaintiff solely on the basis of race and have so classified her on her basis of race as to a denial of services so provided by the City of New Town, North Dakota." Although Plaintiff thereby alleges that she has been denied access to the city's water and sewer systems because she is an Indian, this allegation was abandoned by Plaintiff's counsel at the hearing on the motion for a preliminary injunction. Plaintiff conceded that the sole reason the city officials have denied access to her is the fact that her land is now in "trust status." There is no outstanding contention by the Plaintiff that the city officials have invidiously discriminated against her simply because she is an Indian. Thus, the violation of equal protection alleged under § 1983 in Plaintiff's first theory of recovery is that the city officials have refused to give her water and sewer service because her land is now in "trust status."

Plaintiff's second theory of recovery, also apparently laid under § 1983, alleges a deprivation of "her right to hold land in trust status and to the benefits that are derived from such status." I do not read 25 U.S.C. § 465 as creating a "federal right" in favor of individual Indians to have the United States government hold their land in trust for them. The statute cited clearly says that any acquisition shall be in the discretion of the Secretary of the Interior.

Even if I did find such a right to exist, its denial would not be actionable under § 1983, since it is not a right secured by the Fourteenth Amendment or by a federal statute passed by the Congress under the authority thereof. Hence, Plaintiff's second theory of recovery does not state a cause of action under § 1983.

Plaintiff's third theory of recovery is apparently laid under 42 U.S.C. § 1985(3). Title 42 U.S.C. § 1985(3) (1974), as it pertains to this lawsuit, reads as follows:

"If two or more persons in any State or Territory conspire . . . for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws . . . and if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators."

"The language requiring intent to deprive of equal protection, or equal privileges and immunities, means that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action." Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971). See also Means v. Wilson, 522 F.2d 833, 839-41 (8th Cir. 1975).

Plaintiff's third theory of recovery alleges a conspiracy of the Defendants to "deprive the Plaintiff of her right to equal treatment under the law to water and sewer benefits provided by the city of New Town, North Dakota, and mandated under the Equal Protection Clause under the Fourteenth Amendment to the Constitution." Plaintiff fails to state a cause of action under § 1985(3), however, because she does not allege, or claim, any "invidiously discriminatory animus" behind the actions of the Defendants. Griffin v. Breckenridge, supra, 403 U.S. at 102, 91 S.Ct. at 1798. There is no outstanding contention by the Plaintiff that the Defendants have invidiously discriminated against her simply because she is an Indian. Plaintiff contends she is being...

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4 cases
  • Craig v. Carson
    • United States
    • U.S. District Court — Middle District of Florida
    • 17 Abril 1978
    ...Brainerd v. Potratz, 421 F.Supp. 836, 840 (N.D.Ill.1976); Baron v. Carson, 410 F.Supp. 299, 301 (N.D.Ill.1976); Chase v. McMasters, 405 F.Supp. 1297, 1299 (D.N.D.1975). 13 Under Florida law, county sheriffs are absolutely liable for the acts of their deputies. Fla. Stats. §§ 30.07, 30.09(3)......
  • Chase v. McMasters
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • 5 Abril 1978
    ...local taxation. 1 The District Court initially dismissed the § 1985(3) claim and denied preliminary injunctive relief. Chase v. McMasters, 405 F.Supp. 1297 (D.N.D.1975). It subsequently denied relief on the § 1983 claim after it considered exhibits, depositions and stipulations of fact. Cha......
  • Poirier v. Hodges
    • United States
    • U.S. District Court — Middle District of Florida
    • 2 Febrero 1978
    ...Berrisford School Dist., 425 F.Supp. 1389, 1390 (D.S.D.1977); Baron v. Carson, 410 F.Supp. 299, 301 (N.D.Ill.1976); Chase v. McMasters, 405 F.Supp. 1297, 1299 (D.N.D.1975). Historically, § 1983 was intended by Congress to enforce the provisions of the Fourteenth Amendment. Monroe v. Pape, 3......
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    • United States
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    • 13 Diciembre 1979
    ...Oneida Indian Reservation and the protection of plaintiffs' civil rights. Alternatively, defendants cite the case of Chase v. McMasters, 405 F.Supp. 1297 (N.Dak., 1975), for the tenant that the various defendants have every right to refuse to provide normal government services, such as poli......

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