Native Village of Noatak v. Blatchford, 93-35380

Decision Date28 October 1994
Docket NumberNo. 93-35380,93-35380
Citation38 F.3d 1505
PartiesNATIVE VILLAGE OF NOATAK, Plaintiff-Appellant, v. Edgar BLATCHFORD, as Commissioner, Department of Community and Regional Affairs, State of Alaska, Defendant-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Lawrence A. Aschenbrenner, Native American Rights Fund, Anchorage, AK, William E. Caldwell, Alaska Legal Services Corp., Fairbanks, AK, for plaintiff-appellant.

Gary D. Amendola, Asst. Atty. Gen., Juneau, AK, for defendant-appellee.

Appeal from the United States District Court for the District of Alaska.

Before: PREGERSON, CANBY, and BOOCHEVER, Circuit Judges.

BOOCHEVER, Circuit Judge:

The Native Village of Noatak ("Noatak") appeals the dismissal, after remand from the United States Supreme Court and this court, of its action against the Commissioner of the Alaska Department of Community and Regional Affairs (the "Commissioner"). Noatak's action on remand alleged that the Commissioner racially discriminated against Noatak by implementing certain regulations under a revenue-sharing statute. The district court dismissed the case as moot because the Supreme Court had ruled that the Eleventh Amendment barred all claims for monetary and other retroactive relief and because the repeal of the statute mooted Noatak's claim for prospective relief. We affirm.


In 1980, the Alaska legislature enacted a revenue-sharing statute which provided for annual payments to each "Native village government" located in a community without a state-chartered municipal corporation. Alaska Stat. Sec. 29.89.050 (1984). Under the statute, a "Native village government" included any local governing body organized under the Indian Reorganization Act, 25 U.S.C. Sec. 461 et seq. Appellant Noatak fell within the class benefitted by this legislation.

The state attorney general believed the statute to be unconstitutional. In his view, the Native villages were "racially exclusive groups," not political organizations, and he therefore concluded that awarding funds exclusively to these groups would violate the equal protection provisions of Alaska's Constitution. Accordingly, acting on the attorney general's advice, the Commissioner of the Alaska Department of Community and Regional Affairs expanded the program by implementing regulations under the statute. The regulations provided that all unincorporated communities would be eligible recipients, rather than only unincorporated Native villages. See Alaska Admin.Code Sec. 30.051 (Oct.1981).

Meanwhile, in 1981, the state legislature began to consider revising the revenue-sharing statute. In 1985, the legislature finally repealed Sec. 29.89.050 and replaced it with another statute which essentially codified the Commissioner's implementation of the expanded program. See Alaska Stat. Sec. 29.60.140 (1992). The new statute authorized aid to all unincorporated communities and therefore created a new, broader class of recipients. Section 29.60.140 became effective January 1, 1986.

In September 1985, after the new statute had been enacted but before it became effective, Noatak and two other Native villages brought suit in federal district court. The villages sought declaratory and injunctive relief which would require the Commissioner to pay them the money they would have received but for the administrative expansion of the program. They alleged among other things that the Commissioner deliberately expanded the class of eligible recipients under the old statute to include entities other than the Native villages solely because of the villagers' racial identities, thereby improperly diluting the villagers' share of the allocated funds.

The district court initially granted an injunction to preserve sufficient funds from the fiscal year 1986 allocation to pay Noatak should it prevail. The total amount in question was $611. The court then dismissed the suit, however, on the alternative jurisdictional grounds that Noatak's suit was barred by the Eleventh Amendment, and that the court lacked subject matter jurisdiction. The Commissioner voluntarily agreed to continue holding the $611 pending the appeal of the decision. This court reversed, holding that (1) Noatak was an Indian tribe and the states have no immunity from suits by Indian tribes, and (2) the court had jurisdiction both over the claim that the state had racially discriminated by diluting the bonus given to the Native villages and over the allegation that the Commissioner had violated federal laws and policies intended to further tribal self government. Native Village of Noatak v. Hoffman, 896 F.2d 1157, 1165 (9th Cir.1990) (superseding earlier opinion at 872 F.2d 1384 (9th Cir.1989)).

The Supreme Court reversed. In Blatchford v. Native Village of Noatak, 501 U.S. 775, 111 S.Ct. 2578, 115 L.Ed.2d 686 (1991), the Court held that Noatak's suit was barred by the Eleventh Amendment because Alaska's sovereign immunity extended to suits by Indian tribes. The Court remanded to the Ninth Circuit to determine whether any injunctive relief was available despite the Eleventh Amendment bar to the claims for damages. The Ninth Circuit remanded to the district court to determine whether any viable claim under federal law for prospective injunctive relief was justified. The district court found that Noatak's claims for prospective relief were moot due to the repeal of the original revenue-sharing statute. It found that the claims were based on a program that no longer existed and that the mere possibility that the Commissioner might take similar action in the future did not make the current action a viable case or controversy. The district court therefore dismissed the entire action on mootness grounds. The court, however, did not specifically address what would become of the $611 the Commissioner is holding pending the outcome of the dispute.


The first issue we decide is whether the district court erred in dismissing Noatak's claim for prospective relief as moot because the statute which gave rise to the allegedly discriminatory state actions had been repealed. A district court's dismissal of an action on the ground of mootness is reviewed de novo. Friends of the Payette v. Horseshoe Bend Hydroelectric Co., 988 F.2d 989, 996 (9th Cir.1993).

Mootness is "the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness)." United States Parole Comm'n v. Geraghty, 445 U.S. 388, 397, 100 S.Ct. 1202, 1209, 63 L.Ed.2d 479 (1980) (quoting Henry Monaghan, Constitutional Adjudication: The Who and When, 82 Yale L.J. 1363, 1384 (1973)). Article III of the United States Constitution confers jurisdiction on federal courts over "cases" and "controversies" and has been construed to prohibit advisory opinions. See SEC v. Medical Comm. for Human Rights, 404 U.S. 403, 407, 92 S.Ct. 577, 579, 30 L.Ed.2d 560 (1972); Muskrat v. United States, 219 U.S. 346, 362, 31 S.Ct. 250, 255, 55 L.Ed. 246 (1911). A federal court has no jurisdiction to hear a case that cannot affect the litigants' rights. Allard v. DeLorean, 884 F.2d 464, 466 (9th Cir.1989).

There are, however, a few exceptions to the mootness doctrine. These include cases where the defendant's conduct constitutes a wrong "capable of repetition yet evading review," or where the defendant voluntarily ceases an allegedly illegal practice but is free to resume it at any time. See Barilla v. Ervin, 886 F.2d 1514, 1519 (9th Cir.1989); Lindquist v. Idaho State Bd. of Corrections, 776 F.2d 851, 854 (9th Cir.1985).

Noatak argues that its action challenging the Commissioner's regulations accompanying Sec. 29.89.050 is not moot because, although the statute was repealed, the state's policy of treating Native villages as racial groups, rather than as political entities, still exists. Noatak fears that the state will implement regulations under the new statute which will likewise reflect the allegedly discriminatory policy. Therefore, Noatak contends that this is a situation capable of repetition yet evading review, and that the state's voluntary cessation of the challenged activity by repealing the prior statute is insufficient to render the case moot.

A. Capable of Repetition Yet Evading Review

In order for a matter to fit within the "capable of repetition yet evading review" exception to the mootness doctrine, two criteria must be met. First, there must be a "reasonable expectation" that the same complaining party will be subject to the same injury again. See Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 348, 46 L.Ed.2d 350 (1975); Barilla, 886 F.2d at 1519. Second, the injury suffered must be of a type inherently limited in duration such that it is likely always to become moot before federal Neither of these requirements is met in this case. First, there is no reasonable expectation that the alleged injury will recur. Because the relevant statute has been repealed, the Commissioner cannot promulgate or enforce regulations under that statute. Even if the Commissioner has discretion under the new statute to create new regulations to which Noatak might also object, that in itself is not sufficient to create a reasonable expectation of recurrence. Noatak fears only the possibility that the state's allegedly discriminatory policy will manifest itself under the new statute. Federal courts are not authorized to address such theoretical possibilities. If in the future the Commissioner does implement regulations or policies which Noatak finds objectionable, Noatak can challenge them at that time.

court litigation is completed. Ackley v. Western Conference of Teamsters, 958 F.2d 1463, 1469 (9th Cir.1992); see, e.g., Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 712, 35 L.Ed.2d 147 (1973) (right to abortion claim capable of repetition but...

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