Liberty v. Jewel, CV 14-77-M-DLC

• Decision Date: 30 March 2015
• Docket Number: CV 14-77-M-DLC
• Parties: CATHERINE RAMONA LIBERTY, Plaintiff, v. SALLY JEWEL, SECRETARY, UNITED STATES DEPARTMENT OF INTERIOR, and KEVIN WASHBURN, ASSISTANT SECRETARY OF INTERIOR, INDIAN AFFAIRS, Defendants.
• Court: U.S. District Court — District of Montana

CATHERINE RAMONA LIBERTY, Plaintiff,
v.
SALLY JEWEL, SECRETARY, UNITED STATES DEPARTMENT
OF INTERIOR, and KEVIN WASHBURN, ASSISTANT
SECRETARY OF INTERIOR, INDIAN AFFAIRS, Defendants.

CV 14-77-M-DLC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA MISSOULA DIVISION

March 30, 2015

ORDER

Before the Court is Defendants' motion to dismiss for lack of subject matter jurisdiction and, in the alternative, for summary judgment. For the reasons explained, the Court grants the motion to dismiss for lack of jurisdiction and denies as moot Defendants' motions in the alternative.

Background

Plaintiff Ramona Liberty ("Plaintiff"), an enrolled member of the Confederated Salish and Kootenai Tribes ("Tribe"), owns a fractional interest in allotment land situated on the Flathead Indian Reservation in Montana. The allotment was originally held in trust for Plaintiff's mother Julia Matt Hawkins, an

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enrolled member of the Tribe, pursuant to the Allotment Act. Plaintiff filed this action against Defendant Sally Jewel, in her official capacity as the Secretary of the United States Department of the Interior, and Defendant Kevin Washburn, in his official capacity as the Assistant Secretary of the Interior-Indian Affairs, ("Defendants") for Defendants' alleged actions with respect to her allotment interest.¹ Count One of the Amended Complaint alleges various generalized breaches of trust obligations by Defendants with respect to Plaintiff's interest in the allotment land. Count Two alleges violations of the Indian Land Consolidation Act, 25 U.S.C. §§ 2201- 2221 ("ILCA") and the Indian Self-Determination and Education Assistance Act, 25 U.S.C. §§ 450 - 458hh, ("ISDEAA"), based on Defendants' actions with respect to Plaintiff's interest in the allotment land.

Defendants move to dismiss the complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), and alternatively for summary judgment under Rule 56(a). In particular, Defendants contend that the Court lacks jurisdiction because Plaintiff fails to demonstrate a waiver of the United States' sovereign immunity with respect to her claims. Defendants additionally contend that

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Plaintiff's general breach of trust claim must be dismissed under Fed.R.Civ.P. 12(b)(6) because it fails to adequately plead a breach of any specific trust duty imposed by treaty, statute, executive order, or otherwise. Finally, Defendants alternatively contend that they are entitled to summary judgment because Plaintiff, as a certified class member in Cobell v. United States, D.D.C. No. 96-cv-1295 ("Cobell"), compromised, waived, and released Defendants from any liability as part of the Cobell final settlement.

The Court concludes that all of Plaintiff's claims must be dismissed for lack of subject matter jurisdiction because Plaintiff fails to demonstrate a waiver of the United States' sovereign immunity. Because the Court lacks jurisdiction, it declines to address Defendants' alternative motions.

Legal Standard

Pursuant to Rule 12(b)(1), a Court may dismiss a complaint, or any claim, for lack of subject matter jurisdiction. When considering a Rule 12(b)(1) motion that substantively challenges the existence of jurisdiction, the Court is not limited to the allegations in the complaint but may consider materials outside the pleadings. Assoc. of Am. Med. Colleges v. United States, 217 F.3d 770, 778 (9th Cir. 2000). No presumption of truthfulness applies to the allegations of a complaint in deciding a substantive challenge to jurisdiction. Thornhill Pub. Co.,

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Inc. v. General Tel. & Electronics Corp., 594 F.2d 730, 733 (9th Cir. 1979).

Courts lack jurisdiction over suits against the United States, unless the United States has waived its sovereign immunity: "the United States, as sovereign, is immune from suit save as it consents to be sued, and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit." United States v. Mitchell, 445 U.S. 535, 538 (1980)(internal citation omitted). "A waiver of sovereign immunity cannot be implied but must be unequivocally expressed." Id. The burden is on the plaintiff to demonstrate an unequivocally expressed waiver of sovereign immunity. Dunn & Black, P.S. v. United States, 492 F.3d 1084, 1088 (9th Cir. 2007).

Discussion

Plaintiff's Amended Complaint alleges that jurisdiction in this Court is proper based on the general federal question statute, 28 U.S.C. § 1331. It is well-established, however, that this statute does not provide a waiver of the United States' sovereign immunity, Dunn & Black,P.S., 492 F.3d at 1088, n.3, and Plaintiff concedes that 28 U.S.C. § 1331 does not provide a waiver of the United States' sovereign immunity.

Plaintiff's Amended Complaint also alleges that jurisdiction is proper based on the Mandamus Act, 28 U.S.C § 1361. But, again, the Mandamus Act does not

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waive the United States' sovereign immunity, White v. Adm'r of Gen Serv. Admin., 343 F.2d 444, 447 (9th Cir. 1965); Smith v. Grimm, 534 F.2d 1346, 1353, n.9 (9th Cir. 1976), and Plaintiff concedes that the Mandamus Act does not provide a waiver of the United States' sovereign immunity.

Plaintiff's Amended Complaint alleges no other ground for the exercise of this Court's jurisdiction. However, in response to Defendants' motion to dismiss, Plaintiff argues that the ISDEAA and the ILCA provide the necessary waiver of sovereign immunity. Plaintiff also contends that jurisdiction is proper under 5 U.S.C. § 702 of the Administrative Procedure Act ("APA"), despite the fact that Plaintiff has not pled an APA claim. The Court will address each of these arguments in turn.²

1. Indian Self Determination and Education Assistance Act

Generally, the ISDEAA allows...