Fort Berthold Land and Livestock v. Anderson
| Decision Date | 22 March 2005 |
| Docket Number | No. A4-04-109.,A4-04-109. |
| Citation | 361 F.Supp.2d 1045 |
| Parties | FORT BERTHOLD LAND AND LIVESTOCK ASSOCIATION and its members, including Edward J. Danks, Jr., Morgan Fettig, Tom Breuer, Casey Federicks, Claryca Mandan, Arnie and Ramona Guimont, Todd Hall, Edwin A. Hall, Tex G. Hall, Pete Fredericks, Dennis Huber, Mike Huber, Melvin J. Johnson, Ethan Hall, Gabriel L. Fettig, Howard Fettig, Shane Johnson, Edward S. Danks, Sr., Keith Mandan, Shasta Mandan, Forest Mandan, and Leo N. Baker, Plaintiffs, v. David ANDERSON, Assistant Secretary-Indian Affairs, United States Department of the Interior, William Benjamin, Great Plains Regional Director of the Bureau of Indian Affairs, and Perry Baker, Superintendent of the Fort Berthold Agency, Defendants. |
| Court | U.S. District Court — District of North Dakota |
Sarah M. Vogel, Beth A. Baumstark, Sarah Vogel Law Firm P.C., Bismarck, ND, for Plaintiffs.
David L. Peterson, Bismarck, ND, for Defendants.
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS AND DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
Before the Court is the Plaintiffs' Motion for Summary Judgment filed on November 22, 2004, and the Defendants' Motion to Dismiss filed on December 12, 2004. The Plaintiffs oppose the motion. For the following reasons, the Defendants' Motion to Dismiss is granted and the Plaintiffs' Motion for Summary Judgment is denied.
The named plaintiffs are enrolled members of the Three Affiliated Tribes and are ranchers on the Fort Berthold Reservation in North Dakota. The Plaintiffs belong to the Forth Berthold Land and Livestock Association (Association). The Plaintiffs, and other ranchers who belong to the Association, have one or more grazing permits on specific grazing units within the Fort Berthold Reservation for a five-year period commencing December 1, 1999, and ending November 30, 2004. The Defendants are officers and employees of the Department of Interior and the Bureau of Indian Affairs (BIA) who are charged with administering the grazing permit program. Complaint, ¶¶ 1-2.
On or about December 27, 1999, the Regional Director of the Great Plains Region of the BIA advised the Plaintiffs that the grazing rates in the permit period commencing on December 1, 1999, and ending November 30, 2004, would be increased from $4.30 per animal unit month to $6.92 per animal unit. The Plaintiffs and the Association appealed the Regional Director's increase to the Interior Board of Indian Appeals (IBIA). Complaint, ¶¶ 8-9.
On or about May 2000, the BIA issued permits for the five-year period in question. The Plaintiffs' grazing permits read in relevant part as follows:
By authority of law and under the regulations (25 CFR 166) prescribed by the Secretary of the Interior, [name of rancher], is hereby granted permission to hold and graze the livestock on the Trust Indian and Government-owned lands in the foregoing range unit of the said Reservation, a schedule of which is attached and made a part of this permit, for a period beginning December 1, 1999, and terminating not later than November 30, 2004.
. . . . .
SPECIAL PERMIT REQUIREMENTS AND PROVISIONS
. . . . .
5. The grazing rate on allotted land shall be reviewed annually by the Bureau of Indian Affairs, and if any adjustment is needed, the Regional Director will make such adjustment by September 15.
6. The grazing rates established by the Great Plains Regional Director for the 2000 grazing season that are used to determine grazing fees for land covered by this permit have been appealed to the Interior Board of Indian Appeals and cannot be implemented at this time. Grazing fees for this permit were calculated using the 1999 grazing rates. If the 2000 grazing rates are upheld by the "IBIA", you will be required to pay the difference between the two rates.
Plaintiffs' Ex. 1, unnumbered pp. 2-3.
On December 20, 2000, the IBIA issued a decision on the rate increase appeal. Fort Berthold Land and Livestock Assoc. v. Great Plains Regional Dir., Bureau of Indian Affairs, 35 IBIA 266 (2000). See Plaintiffs' Ex. 2. The IBIA vacated the decision to increase the grazing rates and remanded the matter back to the Regional Director. The IBIA concluded that the Regional Director had "failed to show that she based her grazing rental rate adjustments on appraisal data" as required by 25 C.F.R. § 166.13(a) and provisions in the Bureau of Indian Affairs Manual. 35 IBIA 266, 273-74. The IBIA included instructions to the Regional Director to be followed upon remand:
On remand, the Regional Director shall first determine whether the MOA [Memorandum of Agreement] discussed above is still in effect and whether any other consultation duties are applicable to this matter. The Board urges that, if at all possible, a valuation methodology, including a dispute resolution mechanism, be worked out among the interested parties. If these efforts fail, and the Regional Director issues a new decision under the present regulations, she shall show that she based her decision on appraisal data.
On December 16, 2003, the Regional Director wrote a letter to all permit holders which stated as follows:
On December 20, 2000, the Interior Board of Indian Appeals (IBIA) remanded a September 22, 1999, decision by the Director of the Aberdeen Area (now the Great Plains Region) for reconsideration. After receiving the remand, we consulted our legal advisors and gathered additional information. We now offer the following decision.
. . . . .
I am affirming the original decision to set the minimum grazing rental rate for allotted lands at $6.92 an AUM for the permit period of December 1, 1999, to November 30, 2004 ... [and] reversing my decision to establish a summer seasonal grazing rate of $11.45 an AUM.
. . . . .
I am directing the Superintendent of the Fort Berthold Agency to bill all permittees the difference between the old grazing rental rate ($4.30 an AUM) and the new grazing rental rate ($6.92 an AUM) for each year covered by the grazing permits now in effect at the Fort Berthold Agency.1
See Plaintiffs' Ex., 3. Again, the Plaintiffs and the Association appealed the decision to the Interior Board of Indian Appeals (IBIA). Complaint, ¶ 15.
On June 30, 2004, the Regional Director wrote a letter to the IBIA requesting that the matter be remanded back to him for further consideration and compliance with the IBIA's instructions in Fort Berthold Land and Livestock Assoc. v. Great Plains Regional Dir., Bureau of Indian Affairs, 35 IBIA 266 (2000). In closing, the Regional Director wrote that "[t]he Appellee recognizes this process has been long for all parties involved, therefore the Appellee will make issuing a new decision a priority upon remand." See Plaintiffs' Ex. 4. The Association and other ranchers oppose the Regional Directors request for a remand.
In an order dated July 8, 2004, the IBIA granted the Regional Director's request for remand. At the outset, the IBIA framed the issue on appeal as follows:
These consolidated appeals seek review of a December 16, 2003, decision of the Acting Great Plains Regional Director, Bureau of Indian Affairs (Regional Director), concerning the minimum grazing rental rate for allotted lands on the Fort Berthold Reservation. In Fort Berthold Land and Livestock Association v. Great Plains Regional Director, 35 IBIA 266 (2000), the Board of Indian Appeals (Board) vacated and remanded an earlier decision of the Regional Director increasing the minimum annual grazing rental rate for the Reservation. The Regional Director's December 16, 2003, decision was issued in response to that remand. For the reasons discussed below, the Board grants a request from the Regional Director to vacate the December 16, 2003, decision and remand the matter for further consideration.
Guimont v. Acting Great Plains Regional Director, Bureau of Indian Affairs, 40 IBIA 47, 47-48 (2004). Upon remand, "[t]he Regional Director shall consider the arguments raised by Appellants in their notices of appeal and their objection to a remand, with respect to a rental rate adjustment." Id. at 48. The IBIA also ordered the Regional Director to "afford Appellants a reasonable opportunity to present any additional arguments or evidence, so that the issue may be fully considered and addressed in any new decision issued by the Regional Director." Id.
In a letter dated July 28, 2004, the Regional Director offered the appellants and interested parties an opportunity to submit additional arguments and evidence for consideration in accordance with the IBIA's decision. The additional material was to be submitted to the Regional Director by September 1, 2004. See Plaintiffs' Ex. 6.
On September 9, 2004, the Association and its members filed the present action in Federal District Court in the District of North Dakota "seek[ing] a declaratory judgment as to whether Defendants may impose a retroactive grazing rate increase for the years of 2000 through 2004." Complaint, ¶ 1. The Plaintiffs are asking this Court to issue a declaratory judgment finding that (1) the BIA may not increase the grazing rates charged to the Plaintiffs under the permit terms; (2) that the BIA lost any right to modify the grazing rate by failure to immediately implement the IBIA's decision dated December 20, 2000; and (3) that the Plaintiffs are eligible to apply for Equal Access to Justice fees. On November 22, 2004, the Plaintiffs' filed a Motion for Summary Judgment. In response, the Defendants' filed a motion to dismiss which is presently before the Court.
The Defendants seek dismissal under Rule 12 of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction. The Plaintiffs action is filed under the judicial review provision of the Administrative Procedure Act (APA), 5 U.S.C. §§ 702-706 and federal question jurisdiction pursuant to 28 U.S.C. § 1331. Complaint, ¶¶ 4-5. The Eighth Circuit has held "that ...
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