S. Fork Livestock P'ship v. United States

• Decision Date: 27 April 2016
• Docket Number: 3:15-CV-00066-LRH-VPC
• Citation: 183 F.Supp.3d 1111
• Parties: South Fork Livestock Partnership, Plaintiff, v. United States of America; et al., Defendants.
• Court: U.S. District Court — District of Nevada

183 F.Supp.3d 1111

South Fork Livestock Partnership, Plaintiff,

v.United States of America; et al., Defendants.

3:15-CV-00066-LRH-VPC

United States District Court, D. Nevada.

Signed April 27, 2016

David D Loreman, David D. Loreman Chtd., Elko, NV, for Plaintiff.

Gregory W. Addington, U.S. Attorney's Office, Charles R. Zeh, The Law Offices of Charles R. Zeh, Esq., Reno, NV, for Defendants.

ORDER

LARRY R. HICKS, UNITED STATES DISTRICT JUDGE

Before the court is defendants United States of America, United States Department of the Interior, Bureau of Land Management ("BLM"), Bureau of Indian Affairs ("BIA") (collectively the "United States Defendants"), Brad Sones, Joseph McDade, Rich Adams, Dave Smith, Amy Leuders, and Bryan L. Bowke's (collectively the "Federal Employees")¹ Motion to Dismiss. Doc. # 35.² Plaintiff South Fork Livestock Partnership ("SFLP") filed a response to the Motion to Dismiss (Doc. # 42), to which Defendants replied (Doc. # 44).

Also before the court is defendant Alice Tybo's Motion to Dismiss (Doc. # 41), and defendants Cheryl Mose-Temoke, Gilbert Temoke, and Brandon Reynolds' Motion to Dismiss (Doc. # 57). Alice Tybo, Cheryl Mose-Temoke, Gilbert Temoke, and Brandon Reynolds will collectively be referred to as the "Tribal Defendants." SFLP filed a response to Alice Tybo's Motion to Dismiss (Doc. # 43), to which she replied (Doc. # 47). SFLP also filed a response to Cheryl Mose-Temoke, Gilbert Temoke, and Brandon Reynolds' Motion to Dismiss (Doc. # 60), to which they replied (Doc. # 66).

I. FACTUAL BACKGROUND

This action involves a dispute over the use of grazing permits on federal land. Plaintiff SFLP is a partnership made up of several tribal members of the Te-Moak Tribe of Western Shoshone Indians of Nevada (the "Te-Moak Tribe") who were granted grazing permits by the United States Bureau of Land Management to graze cattle on various public lands located in Elko County, Nevada, known as the Shoshone allotment. The Te-Moak Tribe is comprised of four Bands: the Battle Mountain Band, the Elko Band, the Wells Band, and the South Fork Band. The Te-Moak Tribal Council exercises overall jurisdiction over its Bands and all tribal lands, but individual bands control grazing permits on their respective lands. Tribal Defendants Alice Tybo, Cheryl Mose-Temoke, Gilbert Temoke, and Brandon Reynolds are voting members of both the Te-Moak Tribal Council and the South Fork Band Council.

The Shoshone allotment is comprised of federal land managed by the BLM and tribal lands—held in trust by the United States for the Te-Moak Tribe—managed jointly by the Bureau of Indian Affairs and the South Fork Band Council of the Te-Moak Tribe. Through this system of separate land and management, the BLM has no authority to manage the tribal lands, and the BIA and the South Fork Band have no authority to manage the BLM land. The BLM manages the public land in accordance with their internal processes, and the South Fork Band Council manages the tribal land through a majority vote of council members. No individual South Fork Band Council member has the ability to bind the tribe or take individual action concerning the tribal land.

Management of the Shoshone allotment by both the BLM and the South Fork Bank Council includes the issuance of grazing permits. Grazing permits issued by the BLM allow the holder to graze a specific number of cattle on only BLM managed land. In contrast, grazing permits issued separately by the South Fork Band Council only authorize grazing on tribally managed lands within the Shoshone allotment. Although the tribal and federal lands are separate and distinct with respect to use and management, they are adjacent to each other and run in a checkerboard pattern, which inevitably causes some confusion over access, boundary lines, and resources. Here, SFLP's grazing permits were issued solely by the BLM, and thus, only authorize grazing on the identified BLM managed land within the Shoshone allotment. SFLP alleges that the Tribal Defendants and the Federal Defendants have prevented it from exercising its rights under the federal grazing permits by restricting access to the land and water resources designated in the grazing permits.

On January 30, 2015, SFLP filed its initial complaint against multiple defendants. Doc. # 1. On July 13, 2015, this court dismissed certain tribal defendants for jurisdictional reasons with prejudice, and dismissed other tribal defendants for pleading deficiencies, without prejudice. Doc. # 27. That order also granted SFLP leave to file an amended complaint. Id. On September 12, 2015, SFLP filed an amended complaint alleging six causes of action: (1) breach of contract, alleged only against Federal Defendants; (2) intentional interference with the SFLP contract, alleged against all defendants; (3) intentional interference with access to water, alleged only against Tribal Defendants; (4) procedural due process, alleged only against Federal Defendants; (5) substantive due process, alleged only against Federal Defendants; and (6) conspiracy, alleged against all defendants. Doc # 32. In response, defendants filed the present Motions to Dismiss (Doc. ## 35, 41, 57).

II. LEGAL STANDARD

To survive a motion to dismiss for failure to state a claim, a complaint must satisfy the Federal Rule of Civil Procedure 8(a)(2) notice pleading standard. Mendiondo v. Centinela Hosp. Med. Ctr. , 521 F.3d 1097, 1103 (9th Cir.2008). That is, a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). The 8(a)(2) pleading standard does not require detailed factual allegations, but a pleading that offers " ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action’ " will not suffice. Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ).

To satisfy the plausibility standard, 8(a)(2) requires a complaint to "contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Id. (quoting Twombly , 550 U.S. at 570, 127 S.Ct. 1955 ). A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference, based on the court's "judicial experience and common sense," that the defendant is liable for the misconduct alleged. See id. at 678–79, 129 S.Ct. 1937. The plausibility standard "is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Id. at 678, 129 S.Ct. 1937 (internal quotation marks omitted).

In reviewing a motion to dismiss, the court accepts the facts alleged in the complaint as true. Id. The "factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation." Starr v. Baca , 652 F.3d 1202, 1216 (9th Cir.2011). Moreover, "bare assertions ... amount[ing] to nothing more than a formulaic recitation of the elements of a ... claim ... are not entitled to an assumption of truth." Moss v. U.S. Secret Serv. , 572 F.3d 962, 969 (9th Cir.2009) (citing Iqbal , 556 U.S. at 681, 129 S.Ct. 1937 ) (brackets in original) (internal quotation marks omitted). The court discounts these allegations because "they do nothing more than state a legal conclusion—even if that conclusion is cast in the form of a factual allegation." Id. (citing Iqbal , 556 U.S. at 681, 129 S.Ct. 1937 ). "In sum, for a complaint to survive a motion to dismiss, the non-conclusory ‘factual content,’ and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Id.

III. DISCUSSION

1. Tribal Defendants' Motions to Dismiss (Doc. ## 41, 57)

In its complaint, SFLP alleges that the Tribal Defendants have prevented it from exercising its rights under the BLM issued grazing permits by preventing access to certain grazing lands and depriving it of water historically allocated to BLM land within the Shoshone allotment. However, throughout the amended complaint there are no specific, individual allegations against any Tribal Defendant that allege specific harm to SFLP. Rather, SFLP pleads that the collective action of the South Fork Band Council, consisting of the Tribal Defendants, deprived it of, or interfered with, its use of lawfully obtained BLM grazing permits. In their motions to dismiss, the Tribal Defendants argue that all allegations plead against them in the amended complaint are based upon actions taken in their official capacities as voting members of the South Fork Band Council and are therefore barred by sovereign immunity. See Doc. ## 41, 57. The court agrees.

This court previously found that the Te-Moak Tribe has not waived its sovereign immunity to suit when it dismissed the tribe with prejudice. See Doc. # 27, p.3 ("there has been no express waiver of sovereign immunity by either defendant Te-Moak Tribe or defendant South Fork for the present action."). A tribe's sovereign immunity extends to tribal officials so long as they are acting in their official capacity. Pistor v. Garcia , 791 F.3d 1104, 1112 (9th Cir.2015). "The general bar against official-capacity claims .... [is] that tribal officials are immunized from suits brought against them because of their official capacities. That is, because the powers they possess in those capacities enable them to grant the plaintiffs relief on behalf of the tribe." Id. (emphasis in original) (quoting Native Am. Distrib. v. Seneca–Cayuga Tobacco Co. , 546 F.3d 1288, 1296 (10th Cir.2008) ).

Here, the court has reviewed the documents and...