City of Lincoln City v. U.S. Department of Int.

• Citation: 229 F.Supp.2d 1109
• Decision Date: 17 April 2002
• Docket Number: No. CIV.99-330-AS.,CIV.99-330-AS.
• Parties: CITY OF LINCOLN CITY, Plaintiff, v. UNITED STATES DEPARTMENT OF INTERIOR and Confederated Tribes of Siletz Indians of Oregon, Defendants.
• Court: U.S. District Court — District of Oregon

229 F.Supp.2d 1109

CITY OF LINCOLN CITY, Plaintiff, v. UNITED STATES DEPARTMENT OF INTERIOR and Confederated Tribes of Siletz Indians of Oregon, Defendants.

No. CIV.99-330-AS.

United States District Court, D. Oregon.

April 17, 2002.

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Christopher P. Thomas, Moskowitz & Thomas, Portland, OR, for City of Lincoln City.

Tim W. Simmons, U.S. Attorney's Office, Portland, OR, for secretary of Dept. of Interior.

Tim W. Simmons, U.S. Attorney's Office, Portland, OR, Craig J. Dorsay, Jennifer K. deWald, Portland, OR, for Confederated Tribes of Siletz Indians of Oregon.

OPINION

ASHMANSKAS, United States Magistrate Judge.

This is an action by Lincoln City, Oregon ("City"), against the United States and the Confederated Tribes of Siletz Indians ("Tribe") to overturn a decision by the Department of Interior ("Interior"), Bureau of Indian Affairs ("BIA"), permitting a fee-to-trust transfer of property from the Tribe to the United States. The Tribe moves to dismiss the City's seventh and eighth claims on the ground that the Tribe is an indispensable party which cannot be joined because of its sovereign immunity. The Tribe and Interior move for summary judgment on the City's claims under the Coastal Zone Management Act ("CZMA"). The Tribe moves for summary judgment in its favor on its fourth counterclaim and on the City's first, fourth, fifth and sixth claims. Interior moves for summary judgment in its favor on all of the City's claims.

FACTUAL BACKGROUND

The Tribe owns a parcel of land situated in the City known as the Lakeside Village Property ("Property"). Before the Tribe acquired the Property, the previous owner had designed and begun development of a 144-dwelling subdivision. The City had approved the previous owner's subdivision as a Planned Unit Development ("PUD") under local land use law. On August 19, 1995, the Tribe submitted a "fee-to-trust" application to the BIA, requesting that the Property be taken into trust by the United States for the benefit of the Tribe. See 25 U.S.C. § 465; 25 C.F.R. Part 151. Under 25 U.S.C. § 465, which is part of the Indian Reorganization Act of 1934 ("IRA"), Interior has the authority to place land in trust to be held by the federal government for the benefit of Indians and to be exempt from state and local property taxes. Otherwise, off-reservation property and previously allotted on-reservation property owned by an Indian or an Indian tribe may be subject to state and local taxation. Cass County, Minnesota v. Leech Lake Band of Chippewa Indians, 524 U.S. 103, 114, 118 S.Ct. 1904, 141 L.Ed.2d 90 (1998).

The Tribe's application for fee-to-trust transfer stated that it intended to develop the Property consistent with the PUD previously approved by the City. Upon receipt of the Tribe's application the Superintendent of the Siletz Agency of the BIA ("the Superintendent") invited comments from the City and other local entities and began conducting the required analyses under the CZMA and the National Environmental Policy Act ("NEPA"). The City submitted comments on the Tribe's application to BIA. On October 18, 1996, the Superintendent issued a written recommendation that the Tribe's application be approved. On January 7, 1997, the Portland Area Director of the BIA approved the application. The City appealed to Interior's Board of Indian Appeals "(IBIA"). On January 14, 1999, the IBIA affirmed the Superintendent's decision to take the Property in trust for the Tribe.

STANDARDS

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).

DISCUSSION

1. Tribe's Motion to Dismiss Claims Seven and Eight on Basis of Tribal Immunity.

In the seventh and eighth claims, the City alleges that the fee-to-trust transfer should be set aside because it violates the Republican Form of Government guarantee of Article IV, section 4 of the United States Constitution. The gravamen of the claim is that the fee-to-trust transfer deprives the state of Oregon and the City of full authority over the lands within its boundaries in violation of Article IV, section 3 of the Constitution because it would permit Indian residents on the Property to vote while exempting them from local taxes and from local civil and criminal law.

The Tribe asserts that it is an indispensable party that cannot be joined due to its sovereign immunity, and therefore the seventh and eighth claims must be dismissed. The City and Interior oppose the motion, Interior on the ground that the Tribe is not an indispensable party.

Tribal immunity

Indian tribes have been recognized, first by the European nations, later by the United States, as distinct, independent political entities, qualified to exercise self-government by reason of their original tribal sovereignty. State of Montana v. Gilham, 133 F.3d 1133, 1135 (9th Cir. 1998); Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 519, 8 L.Ed. 483 (1832). The tribes retain whatever inherent sovereignty they had as the original inhabitants of this continent to the extent that sovereignty has not been removed by Congress, Escondido Mut. Water Co. v. La Jolla Band of Mission Indians, 466 U.S. 765, 788 n. 30, 104 S.Ct. 2105, 80 L.Ed.2d 753 (1984), or is inconsistent with the overriding interest of the federal government. Washington v. Confederated Tribes of Colville Indian Reservation, 447 U.S. 134, 153, 100 S.Ct. 2069, 65 L.Ed.2d 10 (1980). See also Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978)(Congress has plenary power over tribes).

"Foremost among the attributes of sovereignty retained by Indian tribes is immunity from suit. Absent Congressional action, consent or waiver, an Indian tribe may not be subject to suit in state or federal court." Santa Clara Pueblo, 436 U.S. at 58, 98 S.Ct. 1670; Snow v. Quinault Indian Nation, 709 F.2d 1319, 1321 (9th Cir.1983). Indian tribes may consent to suit without explicit Congressional authority, In re White, 139 F.3d 1268 (9th Cir.1998), but waiver cannot be implied; it must be expressed unequivocally. McClendon v. United States, 885 F.2d 627, 630 (9th Cir.1989). The Tribe's participation in the underlying administrative proceeding in this case does not constitute a waiver of tribal immunity for purposes of an action filed by a third party seeking review of the agency's decision. Kescoli v. Babbitt, 101 F.3d 1304, 1310 (9th Cir.1996).

If the Tribe is a necessary party, then the Tribe is correct in its assertion that sovereign immunity precludes its being joined in this action. Kescoli, 101 F.3d at 1310; Confederated Tribes of the Chehalis Indian Reservation v. Lujan, 928 F.2d 1496, 1499 (9th Cir.1991).

Is the Tribe a necessary party?

Joinder is governed by Rule 19 of the Federal Rules of Civil Procedure. Whether a party is necessary and indispensable is a pragmatic and equitable determination, not a jurisdictional one. Simpson v. Alaska State Comm'n for Human Rights, 608 F.2d 1171, 1174-75 n. 5 (9th Cir.1979). See also Clinton v. Babbitt, 180 F.3d 1081, 1088 (9th Cir.1999) (Rule 19 inquiry is practical and fact specific).

Whether an action should be dismissed under Rule 19 involves a two-part analysis. First, the district court must determine whether the absent party is a "necessary" party. United States ex rel. Morongo Band of Mission Indians v. Rose, 34 F.3d 901, 907 (9th Cir.1994). A party is "necessary" in two circumstances: 1) when complete relief is not possible without the absent party's presence, or 2) when the absent party claims a legally protected interest in the action. Yellowstone County v. Pease, 96 F.3d 1169, 1172 (9th Cir.1996). If the absent party is "necessary," the court must determine whether joinder is feasible. United States v. Bowen, 172 F.3d 682, 687 (9th Cir.1999). If the absent party is necessary and joinder is not feasible, the court must determine whether the party is "indispensable," i.e., whether in "equity and good conscience" the action can continue without the absent party. Bowen, 172 F.3d at 688. To make the indispensability determination, the court balances four factors: 1) prejudice to any party or to the absent party; 2) whether relief can be shaped to lessen prejudice; 3) whether an adequate remedy, even if not complete, can be awarded without the absent party; and 4) whether there exists an alternative forum. Quileute Indian Tribe v. Babbitt, 18 F.3d 1456, 1460 (9th Cir.1994). If the court determines that a party is not necessary, it need not consider whether it is an indispensable party under Rule 19(b). Washington v. Daley, 173 F.3d 1158, 1169 (9th Cir.1999).The moving party has the burden of proving that dismissal is warranted. Shermoen v. United States, 982 F.2d 1312, 1317 (9th Cir.1992).

Although the Tribe contends that it is a necessary party because its interest cannot be adequately represented by the United States, the Ninth Circuit has many times held that the United States may adequately represent an Indian tribe unless there is a conflict of interest between them. Shermoen, 982 F.2d at 1318; Makah Indian Tribe v. Verity, 910 F.2d 555, 558 (9th Cir.1990); Southwest Center for Biological Diversity v. Babbitt, 150 F.3d 1152, 1154 (9th Cir.1998); Washington, 173 F.3d at 1167. To prevail on a claim that the United States cannot adequately represent the Tribe's interest, the Tribe must not only identify the alleged conflict but demonstrate how such a conflict might actually arise under the facts of the case. Washington, 173 F.3d at 1168; Southwest Center, 150 F.3d at 1154. Such actual conflict has been found in cases involving intertribal conflicts where the United States cannot properly represent any of the tribes without compromising trust obligations owed to...