Coomes v. Adkinson, CIV76-5012.

CourtUnited States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
Citation414 F. Supp. 975
Docket NumberNo. CIV76-5012.,CIV76-5012.
PartiesRe: Clair COOMES and Curtis Coomes v. A. Wayne ADKINSON, Superintendent Pine Ridge Indian Reservation, et al.
Decision Date14 May 1976





Ronald Clabaugh, Joseph Butler, Rapid City, S. D., for plaintiffs.

Bruce Boyd, Asst. U. S. Atty., Rapid City, S. D., Larry Long, Martin, S. D., for defendants.


BOGUE, District Judge:

Plaintiffs Clair and Curtis Coomes are father and son residents of South Dakota who are engaged in the business of raising cattle. Defendant A. Wayne Adkinson is employed by the Bureau of Indian Affairs (hereinafter B.I.A.) at Pine Ridge, South Dakota, in the position of Superintendent of the Pine Ridge Indian Reservation. Defendant R. D. Drapeau is employed by the B.I.A. at Aberdeen, South Dakota, in the position of Acting Director of the Aberdeen Office of the B.I.A. Plaintiffs brought this action seeking review of what they claim is a final determination of Defendant Thomas Kleppe, Secretary of the Interior, (hereinafter Secretary), through his subordinates Defendants Adkinson and Drapeau, to reject plaintiffs' lease bids on six Pine Ridge grazing units and to award three of those unit leases to Defendants Christine Thayer and Robert Soderlin.

Plaintiffs moved with notice pursuant to Rule 65 of the Federal Rules of Civil Procedure for a temporary restraining order and upon information presented at the hearings of March 10 and 12, 1976, this Court under Rule 65(b)(1) and (2), Federal Rules of Civil Procedure, granted plaintiffs' motion on March 15, 1976. Plaintiffs moved for a preliminary injunction and at the evidentiary hearings held on March 25 and 26, 1976, this Court, under authority of Rule 65(a)(2) ordered consolidation and ordered that all parties submit briefs. Since briefing is now completed and the defendants have answered, this Court proceeds in accordance with Rule 52(a) of the Federal Rules of Civil Procedure.

The following factual framework is necessary to an understanding of this case and is largely undisputed. For approximately forty years plaintiffs have leased all or a part of grazing units 27, 314, 705, 709, 710 and 733 located within the Pine Ridge Indian Reservation near Pine Ridge, South Dakota. These six parcels of land, along with some 350 other parcels, were available for lease through an arrangement whereby the individual Indian landowners, who for one reason or another did not plan to use the land themselves, authorized the Secretary, under 25 U.S.C. § 393 and 25 C.F.R. part 151, to act as their agent in leasing their land to others. Upon bids submitted in 1970, plaintiffs were awarded leases on range units 27, 314, 705, 709, 710 and 733 for a five-year period terminating October 31, 1975. During this period plaintiffs' herd of cattle numbering 1,500 more or less, became infected with brucellosis and were placed under quarantine by State Veterinarian. Apparently no attempt was made during this lease period by either the landowners or the Secretary to terminate plaintiffs' leasehold. Although the leases expired October 31, 1975, plaintiff and all other persons holding expired leases were not required to remove their cattle from their grazing units, but rather as a courtesy, the lessees were permitted by the federal defendants to holdover until after the 1975 bidding process was completed and new leases granted. On December 18, 1975, plaintiffs submitted bids on the six units they had previously leased and were occupying. On range units 27, 705, and 709, plaintiffs' bids were the only ones submitted. On units 314 and 710 Defendant Christine Thayer submitted an Indian Preference bid. On unit 733 Robert Soderlin submitted a bid of $7,261.50 in competition with plaintiffs' bid on that unit of $8,000.00.

On December 22, 1975, B.I.A. employee A. Whirlwind Horse, acting for Defendant Adkinson as Superintendent of the Pine Ridge Agency, notified plaintiffs by letter that because their herd had been quarantined, all of their bids on all six units were rejected. On December 31, 1975, under authority of Art. I § 5 of the By-Laws of the Constitution of the Oglala Sioux Tribe of the Pine Ridge Reservation, the Executive Committee met with four of its five members in attendance and issued a Memorandum recommending that plaintiffs be granted a lease continuance on all six units for one year in order to complete the required brucellosis testing and clean up their herd. On January 16, 1976, Defendant Adkinson in his official capacity as Superintendent of the Pine Ridge Agency, notified plaintiffs by letter that the Pine Ridge office, the Aberdeen Area office, and the tribal members had all agreed to grant plaintiffs a one-year lease permit on range units 27, 705 and 709 in order to allow plaintiffs to complete the brucellosis retesting program. Superintendent Adkinson further informed plaintiffs that an oral auction would be held between plaintiffs and Robert Soderlin on unit 733 for a one-year lease.

On January 20, 1976, pursuant to 25 C.F.R. subchapter A, part 2, plaintiffs appealed the Superintendent's decision of December 22, 1975 to the Aberdeen Area Director. Before the Area Director had reached a decision on plaintiffs' appeal, Superintendent Adkinson by letter dated February 2, 1976, awarded Defendant Soderlin range unit 733 without an oral auction, and by letter dated February 5, 1976, informed plaintiffs that the agency had withdrawn the three one-year leases granted on January 16, 1976. Plaintiffs were further directed to remove all their cattle from the six units involved within thirty days and that after March 5, 1976, any cattle remaining would be in trespass and would be assessed a fine of one dollar per head per day. The Superintendent further advised plaintiffs that Defendant Thayer had been awarded units 314 and 710. On February 12, 1976, Defendant Drapeau as Acting Aberdeen Area Director informed plaintiffs by letter that the Aberdeen office had affirmed the February 2 and 5 decisions of the Superintendent, and further informed plaintiffs that the trespass penalty of one dollar per head per day would be assessed back to November 1, 1975. On February 14, 1976, the Superintendent advertised for new bids on range units 27, 705, and 709 with awards to be made on March 15, 1976. On February 17, 1976, plaintiffs filed a second administrative appeal on the Superintendent's decisions of February 2, 5 and 14. Plaintiffs have also appealed the February 12, 1976 decision of the Area Director to the Commissioner of Indian Affairs.

Based upon plaintiffs' complaint filed March 5, 1975, and testimony before this Court, plaintiffs present essentially two claims.

Plaintiffs' first claim alleges that the federal defendants denied them due process of law as guaranteed by the Fifth Amendment of the United States Constitution in that: (a) participation by the Aberdeen Office in the decisions of the Superintendent deprived plaintiffs of due process of law in that the Superintendent did not make an independent decision free from the Area Director's influence. Plaintiffs allege that their 25 C.F.R. subpart C appeal was not decided by a noninterested and impartial decision maker but rather was a prejudged foregone conclusion and a futile exercise since the Area Director was in fact reviewing his own decision, (see Plaintiffs' Brief, pp. 3, 5, 15; see also Transcript of Hearing, March 25, 26, 1976, pp. 124, 125, 129, 130); (b) the Area Director failed to follow the rules and regulations promulgated by the Secretary since he neither declared his decision of February 12, 1976 immediately effective nor stayed the effectiveness of that decision for a period of sixty days to allow for appeal as required by 25 C.F.R. § 2.3 and 25 C.F.R. § 2.18, (see Plaintiffs' Complaint, Count I, para. XII; Amended Complaint, Count II); (c) the Secretary failed to promulgate regulations which would provide for an orderly transfer of range units by requiring through regulation that bids be let well in advance of termination of existing permits, thereby allowing adequate time to accomplish the process of bidding, awarding, appealing, and transferring range units before the status and penalties of trespass attach to holdover lessees, (see Plaintiffs' Brief, pp. 1, 2, 14; see also Transcript of Hearing, March 25, 26, 1976, pp. 31, 32, 33, 34); and (d) the Secretary failed to provide by regulation and refused to grant plaintiffs' request for an opportunity to be present at an evidentiary hearing on record with the right to call and cross examine witnesses, (see Plaintiffs' Complaint, Count I, para. X, para. XI).

Plaintiffs' second claim alleges that the federal defendants' decisions were arbitrary, capricious, and otherwise not in accordance with law because: (a) Section 3(h) of Pine Ridge Tribal Resolution 75-23 requires plaintiffs to participate in the State Brucellosis program but no regulations require plaintiffs to maintain at all times a quarantine free herd in order to be eligible for grazing privileges, (see Plaintiffs' Complaint, Count II, para. IV, see also Plaintiffs' Brief, p. 16); (b) an oral auction between plaintiffs and Defendant Soderlin was not held, thus, Indian owners were deprived of the highest and best lease price, (see Plaintiffs' Complaint Count II, para. V); (c) the award of units 314 and 710 to Defendant Thayer on an Indian Preference basis lacked essential factual support, (see Plaintiffs' Complaint Count II, para. VI).

Plaintiffs' attempt to posit jurisdiction in this Court on 28 U.S.C. §§ 1331, 1361, 2201 and 2202; 5 U.S.C. §§ 704, 705 and 706; and on the Fifth Amendment of the United States Constitution. Plaintiffs allege that the amount in controversy exceeds $10,000.00.

Defendants assert that: (1) this is a suit to which the United States has not consented and, therefore, p...

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