Greene v. Babbitt, C89-645Z.

• Decision Date: 15 October 1996
• Docket Number: No. C89-645Z.,C89-645Z.
• Citation: 943 F.Supp. 1278
• Parties: Margaret GREENE, et al., Plaintiffs, v. Bruce BABBITT, et al., Defendants.
• Court: U.S. District Court — Western District of Washington

943 F.Supp. 1278

Margaret GREENE, et al., Plaintiffs, v. Bruce BABBITT, et al., Defendants.

No. C89-645Z.

United States District Court, W.D. Washington.

October 15, 1996.

COPYRIGHT MATERIAL OMITTED

Russel L. Barsh, Law Office of Russel L. Barsh, Anacortes, WA, for Plaintiffs.

R. Anthony Rogers, U.S. Department of Justice, Environment and Natural Resources Division, General Litigation Section, Washington, DC, Katrina C. Pflaumer, United States Attorney, Brian C. Kipnis and Christopher L. Pickerell, Assistant United States Attorneys, Seattle, WA, for Defendants.

James B. Weber, Office of Tribal Attorney, Swinomish Indian Tribal Community, LaConner, WA, for Amicus Curiae.

Douglas Lewis Bell, James H. Jones, Jr., Bell & Ingram, P.S., Everett, WA, for Intervenor-Plaintiff and Intervenor-Defendant.

ORDER

ZILLY, District Judge.

INTRODUCTION

On November 8, 1995, Assistant Secretary of the Interior Ada Deer issued a Final Determination for Federal Acknowledgment of the Samish Tribal Organization as an Indian Tribe pursuant to 25 C.F.R. Part 83. In accordance with 25 C.F.R. § 83.9(h), the Secretary gave formal notice on March 29, 1996 that the Samish Tribal Organization exists as an Indian Tribe within the meaning of federal law, and published that notice in the Federal Register on April 9, 1996. 61 Fed.Reg. 15825-26. In connection with her decision to grant federal tribal recognition, the Assistant Secretary of the Interior rejected certain findings made by the Administrative Law Judge, David Torbett.

The plaintiffs, Margaret Greene and the Samish Indian Tribe, have brought this supplemental action pursuant to 5 U.S.C. § 706, alleging that the Department of Interior violated the Fifth Amendment Due Process Clause and § 553 of the Administrative Procedure Act (5 U.S.C. § 553), in connection with the federal acknowledgment process. Plaintiffs allege specifically that prior to issuing her final decision Assistant Secretary Ada Deer, the agency official responsible for making the recognition decision,¹ met ex parte with Scott Keep, the agency lawyer who represented the Bureau of Indian Affairs at the hearing before the Administrative Law Judge. Mr. Keep and his expert witness, who was also present at the ex parte hearing, urged Assistant Secretary Deer to deny tribal recognition to the Samish and to reject certain findings made by the ALJ. After that ex parte meeting, Assistant Secretary Deer granted the Samish tribal recognition but rejected certain findings that Mr. Keep urged her to reject. By motion (docket no. 276), the Samish seek to reinstate certain of the findings rejected by the Assistant Secretary. The defendants have cross-moved for summary judgment on all of plaintiffs' claims.

The Court, having considered the briefs and supplemental responses of the parties to the five questions raised by the Court's Minute Order of April 22, 1996, and having considered the arguments of counsel at the hearing on July 18, 1996, now GRANTS plaintiffs' motion, reinstates certain Findings of the Administrative Law Judge, and finds government attorney Scott Keep in contempt of court for the reasons stated in this opinion. The Court DENIES the defendants' cross-motion.

BACKGROUND

The Samish people's quest for federal recognition as an Indian tribe has a protracted and tortured history,² and their long journey for recognition has been made more difficult by excessive delays and governmental misconduct.

The official journey began when the Samish Tribal Organization ("Samish") filed their first Petition for federal acknowledgment in 1972, after Congress began conditioning eligibility for most programs benefitting American Indians upon status as a tribe recognized by the federal government. Federal acknowledgment of tribal existence by the Department of Interior is a "prerequisite to the protection, services, and benefits of the Federal government available to Indian tribes by virtue of their status as tribes." 25 C.F.R. § 83.2 (1995). The Department of the Interior took no action on the Samish application until 1979, one year after the Department of Interior published its final regulations governing the procedure for official recognition of Indian Tribes.³ Ultimately, on November 4, 1982, the Assistant Secretary of Indian Affairs published a notice concluding that the Samish should not be recognized. After several years of further delay, a final decision denying tribal recognition was published in the Federal Register on February 5, 1987. See 52 Fed.Reg. 3709. The significance of this decision was that the Samish did not exist as an Indian tribe for federal purposes.

In April 1989, the Samish tribe and Margaret Greene, its Chairman, brought an action in this Court challenging on Fifth Amendment due process grounds the decision denying recognition. On February 25, 1992, this Court vacated the decision denying recognition to the Samish and remanded the recognition petition for a formal adjudication under § 553 of the Administrative Procedure Act ("APA"). See Greene v. Lujan, 1992 WL 533059 (W.D.Wash.1992), aff'd, 64 F.3d 1266 (9th Cir.1995). The Court noted in its remand order that there was evidence suggesting that "some of the decision makers prejudged the case."⁴ The Ninth Circuit, in affirming this Court's ruling, stated:

Informal decision-making, behind closed doors and with an undisclosed record, is not an appropriate process for the determination of matters of such gravity.

64 F.3d at 1275.

Prior to formally remanding the case to the Secretary, this Court directed the parties to meet and attempt to agree on the procedures that would govern remand. The parties met and agreed to procedures which they set forth in a Joint Status Report. The Joint Status Report provided in part:

The parties agreed that, following the hearing on remand, the ALJ will make written findings of fact, together with a recommendation to the Assistant Secretary — Indian Affairs as to whether the Plaintiffs are an Indian tribe, based only on the existing administrative record and the testimony produced at the hearing.

The parties further agreed that either party, or amicus curiae, may submit written comments on the findings and recommendations to the Assistant Secretary — Indian Affairs, within 30 days, and that within 60 days of receiving the findings and recommendation of the ALJ, the Assistant Secretary shall either adopt or reject them, and issue a new decision as to the status of Plaintiffs. If he rejects them, he shall state the basis for that rejection in writing.

Joint Status Report dated July 8, 1992 (docket no. 191) at 12. At a hearing to review the terms of the Joint Status Report, this Court approved the procedures agreed to by the parties. Transcript of Hearing held on September 18, 1992 (docket no. 214) at 47. The procedural protections agreed upon by the parties were especially important because the recognition regulations contained in 25 C.F.R. Part 83 mandate inquiry into the "social and political structure of the petitioning tribe," matters that are "inherently complex and prone to mischaracterization." Order dated February 25, 1992 (docket no. 169) at 18.

Upon remand to the agency, the matter proceeded to a hearing before Administrative Law Judge David L. Torbett. At the hearing, which lasted from August 22, 1994 to August 30, 1994, both sides presented expert witnesses and other evidence. After the hearing, on August 31, 1995, Judge Torbett issued an exhaustive opinion. The opinion contains four parts: (1) a summary of the evidence (pages 4-18); (2) a discussion and recommendation (pages 18-23); (3) an appendix discussing the burden of proof, and (4) an appendix enumerating 205 proposed findings of fact (44 pages). The Proposed Findings substantiated that the Samish met the mandatory criteria for federal acknowledgement as set forth in 25 C.F.R § 83.7. The ALJ's opinion and recommendations were then sent to the Assistant Secretary of the Interior for a final determination.

On November 8, 1995, Assistant Secretary Ada Deer issued her final decision pursuant to 25 C.F.R. Part 83 that the Samish Tribal Organization existed as an Indian Tribe. The Final Determination rejected, however, certain proposed findings of the ALJ.

Plaintiffs now challenge the proceedings before the Secretary on remand, claiming the government violated the Administrative Procedure Act and their due process rights under the Fifth Amendment. The challenge involves undisputed events which occurred after the Administrative Law Judge issued his findings and recommendations on August 31, 1995, but before the Assistant Secretary issued the Final Determination on November 8, 1995.

It is undisputed that on November 8, 1995, before a final determination, Scott Keep, an attorney with the Solicitor's Office, Department of the Interior,⁵ and Dr. Roth, the government's expert witness, had an ex parte meeting with Assistant Secretary Deer⁶ for the purpose of attempting to persuade the Assistant Secretary to reject the Administrative Law Judge's recommendation of federal recognition.⁷ Mr. Keep also gave Assistant Secretary Deer written arguments, which he had prepared, and a proposed draft of the Assistant Secretary's decision. See Barsh Decl, docket no. 328, Exs. G, H and I. These ex parte conversations with Assistant Secretary Deer occurred behind closed doors, and no transcript or record of the proceedings was ever made.⁸ In addition, no effort was made to notify the Samish of these meetings, either before or after they occurred, and it was only months later that the Samish learned of these events after the final decision had been made. Although the Assistant Secretary ultimately concluded that the Samish should be recognized, Keep was successful in having the Assistant Secretary reject certain proposed findings of fact which are of vital importance to the Samish.⁹ The Assistant Secretary instead adopted certain findings drafted and recommended by Mr....