Mille Lacs Band of Ojibwe v. Cnty. of Mille Lacs

• Decision Date: 03 March 2022
• Docket Number: 17-cv-05155 (SRN/LIB)
• Court: U.S. District Court — District of Minnesota
• Parties: Mille Lacs Band of Ojibwe, a federally recognized Indian Tribe; Sara Rice, in her official capacity as the Mille Lacs Band Chief of Police; and Derrick Naumann, in his official capacity as Sergeant of the Mille Lacs Police Department, Plaintiff, v. County of Mille Lacs, Minnesota; Joseph Walsh, individually and in his official capacity as County Attorney for Mille Lacs County; and Donald J. Lorge, individually and in his official capacity as Sheriff of Mille Lacs County, Defendants.

Mille Lacs Band of Ojibwe, a federally recognized Indian Tribe; Sara Rice, in her official capacity as the Mille Lacs Band Chief of Police; and Derrick Naumann, in his official capacity as Sergeant of the Mille Lacs Police Department, Plaintiff,
v.
County of Mille Lacs, Minnesota; Joseph Walsh, individually and in his official capacity as County Attorney for Mille Lacs County; and Donald J. Lorge, individually and in his official capacity as Sheriff of Mille Lacs County, Defendants.

No. 17-cv-05155 (SRN/LIB)

United States District Court, D. Minnesota

March 3, 2022

Anna Brady, Beth Ann Baldwin, Marc D. Slonim, and Wyatt Golding, Ziontz Chestnut, 2101 Fourth Avenue, Suite 1230, Seattle, WA 98121; and Arielle Wagner, Charles N. Nauen, and David J. Zoll, Lockridge Grindal Nauen P.L.L.P., 100 Washington Avenue South, Suite 2200, Minneapolis, MN 55401, for Plaintiffs.

Brett D. Kelley, Kelley, Wolter & Scott, P.A., 431 South Seventh Street, Suite 2530, Minneapolis, MN 55415; Courtney E. Carter and Randy V. Thompson, Nolan Thompson Leighton & Tataryn PLC, 1011 First Street South, Suite 410, Hopkins, MN 55343; and Scott M. Flaherty and Scott G. Knudson, Taft Stettinius & Hollister LLP, 80 South Eighth Street, Suite 2200, Minneapolis, MN 55402, for Defendant County of Mille Lacs, Minnesota.

Scott M. Flaherty and Scott G. Knudson, Taft Stettinius & Hollister LLP, 80 South Eighth Street, Suite 2200, Minneapolis, MN 55402, for Defendant Joseph Walsh.

Brett D. Kelley, Douglas A. Kelley, Stacy Lynn Bettison, and Steven E. Wolter, Kelley, Wolter & Scott, P.A., 431 South Seventh Street, Suite 2530, Minneapolis, MN 55415; and Scott M. Flaherty and Scott G. Knudson, Taft Stettinius & Hollister LLP, 80 South Eighth Street, Suite 2200, Minneapolis, MN 55402, for Defendant Donald J. Lorge.

ORDER

SUSAN RICHARD NELSON, UNITED STATES DISTRICT JUDGE

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This matter is before the Court on the Motion to Dismiss for Lack of Jurisdiction Based on Mootness [Doc. No. 303] filed by Defendants Donald Lorge and Joseph Walsh.^[1] Based on a review of the files, submissions, and proceedings herein, and for the reasons below, the Court denies the motion.

I. BACKGROUND

A. Facts Giving Rise to the Lawsuit

Plaintiffs are the Mille Lacs Band of Ojibwe, Mille Lacs Band Chief of Police Sara Rice, and Sergeant Derrick Naumann (collectively, “the Band”). The Band brought suit against the County of Mille Lacs, Mille Lacs County Attorney Joseph Walsh, and Sheriff Donald Lorge (collectively, “the County”) seeking declaratory and injunctive relief regarding the Band's law enforcement authority within the Mille Lacs Reservation. (See generally Compl. [Doc. No. 1].)

The Court incorporates by reference the factual background set forth in its December 21, 2020 Order [Doc. No. 217]. As the Court recounted in that Order, Article 2 of the 1855 Treaty between the Minnesota Chippewa Tribe and the United States

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established the Mille Lacs Indian Reservation, which comprises about 61, 000 acres of land. (Dec. 21, 2020 Order at 3.) Plaintiffs contend that the Reservation established by the 1855 Treaty has never been diminished or disestablished. (Id.) If the Reservation has been disestablished, which they contend it has not, the Band maintains only a temporary right of occupancy insufficient to constitute a “reservation” in the term's legal sense. Within the Reservation, the United States holds approximately 3, 600 acres in trust for the benefit of the Band, the Minnesota Chippewa Tribe, or individual Band members. (Id.) The Band owns in fee simple about 6, 000 acres of the Reservation, and individual Band members own in fee simple about 100 acres of the Reservation. (Id.)

In Defendants' view, however, the Reservation established by the 1855 Treaty was diminished or disestablished by way of subsequent federal treaties, statutes, and agreements. (Id.)

In 2008, the Band and the County entered into a cooperative law enforcement agreement (“2008 Agreement”) that allowed Band law enforcement officers to exercise concurrent jurisdiction with the Mille Lacs County Sheriff's Department to enforce Minnesota state law, as provided in Minn. Stat. § 626.90. (Id.)

In June 2016, however, the County terminated the 2008 Agreement, primarily due to a dispute regarding the Reservation's boundaries, which impacted the scope of the Band's law enforcement authority. (Id.; see also Baldwin Decl. [Doc. No. 150], Ex. KK (Walsh Dep.) at 318:23-319:3; id., Ex. VV (June 22, 2016 Sheriff Staff Mtg. Minutes) at 8; id., Ex. WW (June 15, 2016 Sheriff Staff Mtg. Minutes) at 2, 5.) In July 2016, County Attorney Walsh asked then-Minnesota Attorney General Lori Swanson for an opinion

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regarding the dispute, which she denied for several reasons, and recommended that Walsh advise the County as he deemed appropriate. (See Aug. 2021 Walsh Decl. [Doc. No. 306-1] ¶¶ 7-8].)

Shortly thereafter, Walsh issued an Opinion and Protocol (the “2016 Opinion and Protocol”) that addressed the Band's state law enforcement authority. (See Dec. 21, 2020 Order at 4-5.) Walsh also opined that the Band's inherent law enforcement authority under federal law did not extend to non-trust lands within the 1855 Reservation, and did not include the authority to investigate state-law violations by Indians or non-Indians, even on trust lands. (Id.)

Under the 2016 Opinion and Protocol, Band officers who contravened their scope of authority would be subject to criminal and civil penalties for unauthorized use of force, obstruction of justice, and impersonating a peace officer. (Id. at 5.) The Sheriff's Office enforced the 2016 Opinion and Protocol by “interfere[ing] with law enforcement measures undertaken by Band officers.” (Id. at 6, 7-11.) Morale declined among Band officers, several of whom resigned. (Id. at 14-15.) Band officers found that due to their diminished authority, they were unable to respond to increasingly visible criminal activity, particularly involving drugs, on the Reservation. (Id. at 16.)

In January 2016, the Band and the Bureau of Indian Affairs (“BIA”) entered into an agreement, effective January 1, 2017, by which Band officers were deputized and issued Special Law Enforcement Commissions (“SLECs”) to enforce federal law within the Band's Indian country. (Id. at 21.) Despite the issuance of the SLECs, Walsh maintained that the 2016 Opinion and Protocol remained in force. (Id.)

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Plaintiffs filed this lawsuit in November 2017. (Id. at 22.) In September 2018, the Band, County, and former Mille Lacs County Sheriff Brent Lindgren entered into an interim law enforcement agreement (the “2018 Agreement”). (Id.) On a temporary basis, the 2018 Agreement grants the Band concurrent jurisdiction with the Sheriff over all persons on trust lands, all Band members within the boundaries of the 1855 Treaty, and any person who commits or attempts to commit a crime within the presence of a Band officer within the boundaries of the 1855 Treaty. (Id.) Under its own terms, the 2018 Agreement automatically terminates 90 days after the final resolution of this case. (Id.)

The parties proceeded to file early dispositive motions on several issues. On December 21, 2020, the Court issued a ruling on several of the parties' motions, granting Plaintiffs' Motion for Summary Judgment on Standing, Ripeness, and Mootness; denying Defendants Walsh and Lorge's Motion for Summary Judgment; and denying Defendants' Motion to Strike and for Sanctions. (Id. at 47.)

B. Defendants' Interlocutory Appeal

On January 19, 2021, Walsh and Lorge filed an interlocutory appeal [Doc. No. 218], challenging certain aspects of this Court's December 21, 2020 ruling. Specifically, they argued that the Court lacked jurisdiction over Plaintiffs' claims under 28 U.S.C. § 1331, that Plaintiffs lacked a “cause of action” against them, and that they were immune from suit pursuant to various immunity doctrines. (Baldwin Decl. [Doc. No. 309], Ex. B (W&L Opening 8th Cir. Brief).) Walsh and Lorge did not challenge this Court's ruling on mootness.

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On August 31, 2021, after the parties had filed their memoranda with the Eighth Circuit and were awaiting oral argument, Walsh and Lorge moved to dismiss their appeal on mootness grounds, citing the Supreme Court's June 1, 2021decision in United States v. Cooley, 141 S.Ct. 1638 (2021). (Baldwin Decl. [Doc. No. 309], Ex. C (W&L 8th Cir. Mot. to Dismiss) at 1.) They also argued that their appeal was moot because it would be speculative to find the challenged conduct would recur. (Id. at 8-9.) Accordingly, Walsh and Lorge asked the Eighth Circuit to “direct the district court to dismiss [Plaintiffs'] claims against [them].” (Id.)

Alternatively, if the Eighth Circuit declined to dismiss their appeal, Walsh and Lorge asked the court to refer the question of whether they were state actors to the Minnesota Supreme Court. (Id. at 10-11.)

On September 10, 2021, the Eighth Circuit ruled on the Motion to Dismiss, stating, “Appellants' motion to dismiss on terms fixed by the court is granted. Each side will bear its own costs on appeal. The Court's mandate shall issue forthwith.” (8th Cir. J. [Doc. No. 292]) (citing Fed. R. App. P. 42(b); Fed. R. App. P. 39(a)(4)). The Eighth Circuit issued its mandate that same day, returning jurisdiction to this Court. (8th Cir. Mandate [Doc. No. 292].)

Later on September 10, Plaintiffs filed their response to Walsh and Lorge's Motion to Dismiss, even though the Eighth Circuit had just issued its judgment and mandate. (Baldwin Decl. [Doc. No. 309], Ex. D (Pls.' Resp. to 8th Cir. Mot. to Dismiss).) Plaintiffs explained that nevertheless, they were making a timely response “in the event there are any further proceedings before [the Eighth Circuit] under [Fed. R. App. P.] 40 or Eighth Circuit

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Rule 27A(d), ” i.e., proceedings for rehearing or reconsideration of the Eighth Circuit's disposition of the appeal. (Id...