Larson v. United States
| Decision Date | 17 August 2021 |
| Docket Number | 3:20-CV-03019-RAL |
| Parties | CARRIE LARSON, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. |
| Court | U.S. District Court — District of South Dakota |
Carrie Larson filed this lawsuit against the United States under the Federal Tort Claims Act (FTCA). Doc. 1. Her claims in this lawsuit concern a grazing permit that Larson had secured from the Bureau of Indian Affairs (BIA) to pasture her cattle on tribal trust land located within the Rosebud Sioux Indian Reservation. Doc. 1. Larson alleges that the BIA committed various acts of negligence that disrupted and ultimately resulted in the cancellation of this grazing permit. Doc. 1. The United States has filed a motion to dismiss and a brief in support thereof, arguing that this Court lacks subject matter jurisdiction over Larson's claims. Docs. 8, 9. Larson has responded in opposition, Doc. 15, and the United States has replied, Doc. 17. This Court now grants the United States's motion to dismiss for the reasons contained herein.
This Court in ruling on the motion to dismiss draws the facts primarily from Larson's complaint.[1] The BIA issued Larson a ten-year grazing permit on tribal trust land located within the Rosebud Sioux Indian Reservation. Doc. 1 at ¶ 4. The grazing permit allowed Larson to pasture her cattle on two range units, Units 262 and 275. Doc. 1 at ¶ 4. In exchange, Larson agreed to pay the BIA $ 10, 090 annually for the benefit of the Rosebud Sioux Tribe. Doc. 10 at ¶ 2. Under the terms of the permit, Larson was required to obtain the BIA's permission to graze any cattle not contemplated by the permit and to make any improvements to the land. Doc 10 at ¶ 3. According to Larson's complaint, the BIA gave Larson permission to allow third parties to pasture their cattle on her range units and authorized Larson to make certain improvements to the land such as creating water access for her cattle and constructing fences to enclose the range units. Doc. 1 at ¶¶ 7, 8, 15.
Larson claims that the BIA made a series of decisions that deprived her of the benefits of her grazing permit. Doc. 1 at ¶ 5. Larson alleges that the BIA allowed another individual to trespass on her range units. Doc. 1 at ¶ 5. She claims that this particular individual pastured almost 900 cattle on her range units for 21 days without her permission and that the BIA failed to prevent and terminate that trespass. Doc. 1 at ¶¶ 5, 17. Larson also claims that the BIA denied her the opportunity to allow certain individuals to graze their cattle on her range units even though the BIA had previously given her permission to do so. Doc. 1 at ¶ 16. She alleges that the BIA went as far as charging her with trespass. Doc. 1 at ¶ 16. Finally, Larson alleges that the BIA made misrepresentations to the Rosebud Sioux Tribe about unauthorized improvements on her range units and recommended that the Tribe withdraw these range units from the grazing permit area. Doc. 1 at ¶¶ 9, 12, 17. Larson claims that the Tribe consequently withdrew this land only because the BIA misrepresented her activities on the land and withheld the truth. Doc. 1 at ¶¶ 13, 14. Larson asserts that the BIA effectively cancelled her grazing permit and did not afford her any administrative remedies as required by law. Doc. 1 at ¶ 17.
Larson seeks to recover $1.1 million in damages for the loss of the grazing permit. Doc. 1 at ¶ 18. Larson identifies four acts of what she believes to be negligence under the FTCA: (1) the United States failed to provide accurate information to the Rosebud Sioux Tribe concerning Larson's grazing permit on two range units; (2) the United States failed to allow third-party grazing on Larson's range units; (3) the United States failed to prevent others from trespassing on Larson's range units; and (4) the United States failed to provide Larson with administrative remedies concerning the termination of her grazing permit. Doc. 1 at ¶ 17. The United States asserts sovereign immunity and argues that this Court lacks subject matter jurisdiction over all of these claims.
The United States brings its motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure. Rule 12(b)(1) authorizes dismissal for lack of subject matter jurisdiction. On a motion to dismiss under Rule 12(b)(1), the standard of review depends on whether the defendant is making a facial attack or factual attack on subject matter jurisdiction. Stalley v. Catholic Health Initiatives, 509 F.3d 517, 520-21 (8th Cir. 2007). Where the defendant makes a facial attack to challenge whether the facts alleged in the complaint establish subject matter jurisdiction under Rule 12(b)(1), the plaintiff is afforded similar safeguards as in a Rule 12(b)(6) motion. Osborn v. United States, 918 F.2d 724, 729 n.6 (8th Cir. 1990). Namely, the Court must "accept as true all factual allegations in the complaint, giving no effect to conclusory allegations of law," and determine whether the plaintiffs alleged facts "affirmatively and plausibly suggest" that jurisdiction exists. Stalley, 509 F.3d at 521. A court's review then is limited to the face of the pleadings. Branson Label. Inc. v. City of Branson, 793 F.3d 910, 914 (8th Cir. 2015).
On the other hand, where the defendant attacks the factual basis for subject matter jurisdiction, the court can consider matters outside the pleadings, "and the non-moving party does not have the benefit of 12(b)(6) safeguards." Osborn, 918 F.2d at 729 n.6. "A factual attack occurs when the defendant challenges the veracity of the facts underpinning subject matter jurisdiction." Davis v. Anthony, Inc., 886 F.3d 674, 679 (8th Cir. 2018) (). In that case, "no presumptive truthfulness attaches to the plaintiffs allegations," and a "court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case." Osborn, 918 F.2d at 730 (citation omitted). The United States brings what it considers to be a factual attack, although the outcome remains the same if this Court were to view the motion to dismiss as a facial attack. Doc. 9 at 15.
The United States asserts that this action is barred under the doctrine of sovereign immunity. "Sovereign immunity shields the United States and its agencies from suit absent a waiver." Compart's Boar Store, Inc. v. United States, 829 F.3d 600, 604 (8th Cir. 2016) (citing FDIC v. Meyer, 510 U.S. 471, 475 (1994)). "Sovereign immunity is jurisdictional in nature." Meyer, 510 U.S. at 475. Thus, the United States's consent to be sued is a prerequisite to a court acquiring jurisdiction over the case. Id. Any consent of the United States to be sued must be "express and unequivocal." Preferred Risk Mut. Ins. Co. v. United States, 86 F.3d 789, 792 (8th Cir. 1996). If Congress chooses to waive sovereign immunity, then it prescribes "the terms and conditions on which the United States consents to be sued, and the manner in which the suit shall be conducted." Mader v. United States. 654 F.3d 794, 797 (8th Cir. 2011) ().
When a federal defendant invokes sovereign immunity as a defense and ground for dismissal, the plaintiff must point to a specific act of Congress that waives sovereign immunity and allows the claims to go forward. See V S Ltd. P'ship v. Dep't of Hous. and Urb. Dev., 235 F.3d 1109, 1112 (8th Cir. 2000) (). "Any waiver of sovereign immunity, including the FTCA, must be strictly construed and, to come within the ambit of a particular waiver, a claimant must fully adhere to all statutory procedures." Garreaux v. United States, 544 F.Supp.2d 885, 894 (D.S.D. 2008) ). Ultimately, it is the plaintiff that bears the burden of establishing that the United States has unequivocally waived its sovereign immunity. Id. ).
Here, Larson alleges that the FTCA grants this Court subject matter jurisdiction over her claims and waives the United States's sovereign immunity. The FTCA indeed operates as both a grant of subject matter jurisdiction and a waiver of sovereign immunity over certain tort claims. Mader. 654 F.3d at 797. Such claims are those that are "actionable" under 28 U.S.C. § 1346(b)(1). Brownback v. King. 141 S.Ct. 740, 746 (2021) (citation omitted). A claim is "actionable" under § 1346(b)(1) if it alleges six elements. Id. The claim must be:
(1) against the United States, (2) for money damages, ... (3) for injury or loss of property, or personal injury or death (4) caused by the negligent or wrongful act or omission of any employee of the Government (5) while acting within the scope of his office or employment, (6) under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
Id. (cleaned up); see also 28 U.S.C. § 1346(b)(1). The Eighth Circuit has made clear that the "law of the place" means "law of the state," regardless of whether the tortious act occurred on tribal or non-tribal land. LaFromboise v. Leavitt 439 F.3d 792, 793, 796 (8th Cir. 2006). Thus, to make out an actionable FTCA claim in this case, Larson must allege that the BIA committed a tort under South Dakota law for which a private person could be held liable. See Buckler v United States, 919 F.3d 1038, 1044 (8th Cir. 2019). Even if Larson does that, this Court may still...
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