State of Fla., Dept. of Business Regulation v. U.S. Dept. of Interior, 84-3246

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Writing for the CourtBefore KRAVITCH and JOHNSON, Circuit Judges, and TUTTLE; KRAVITCH
Citation768 F.2d 1248
PartiesSTATE OF FLORIDA, DEPARTMENT OF BUSINESS REGULATION, State of Florida, Department of Revenue, State of Florida; and the City of Tampa, Florida, Plaintiffs-Appellants, v. UNITED STATES DEPARTMENT OF the INTERIOR and Donald P. Hodel, Secretary of the Interior, Defendants-Appellees, Seminole Tribe of Florida, Defendant-Intervenor-Appellee.
Docket NumberNo. 84-3246,84-3246
Decision Date16 August 1985

Harold F.X. Purnell, Sandra P. Stockwell, Gen. Counsel, Dept. of Business Regulation, Joseph C. Mellichamp, Asst. Atty. Gen., Tallahassee, Fla., for plaintiffs-appellants.

Wendy B. Jacobs, Appellate Section, U.S. Dept. of Justice, Washington, D.C., J. Carol Williams, Martin W. Matzen, Charles W. Ross, David T. Henniger, St. Petersburg, Fla., for defendants-appellees.

Appeal from the United States District Court for the Middle District of Florida.

Before KRAVITCH and JOHNSON, Circuit Judges, and TUTTLE, Senior Circuit Judge.

KRAVITCH, Circuit Judge:

This litigation involves the combined efforts of the State of Florida, the Florida Department of Business Regulation, the Florida Department of Revenue, and the City of Tampa (appellants), to challenge the Secretary of the Interior's decision to acquire a tract of land in trust for the benefit of the Seminole Indian Tribe. The court below dismissed their complaint on sovereign immunity and standing grounds. We affirm as to sovereign immunity; accordingly we do not reach the standing question.


In 1980, the City of Tampa began excavation of land near the former site of Fort Brook, an Army outpost that had been used in the nineteenth century relocation of American Indians living in Florida. 1 During this excavation a construction crew unearthed numerous Indian artifacts and a burial site that included skeletal remains of persons of Indian ancestry. Shortly after this discovery, the City of Tampa agreed to transfer the artifacts and bodies to the Seminole Tribe of Florida, with the understanding that the Seminole Tribe would construct a museum in which the artifacts could be displayed and inter the bodies in the land on which the museum would be built.

The Seminole Tribe purchased an 8.5 acre parcel of land in Hillsborough County, Florida for these purposes, and petitioned the Secretary of the Interior to exercise his authority pursuant to 25 U.S.C.A. Sec. 465 and acquire title to the land in trust for the Indians. Although this statute designates that the decision to acquire land in trust for Indians is one within the Secretary's discretion, the Secretary has promulgated regulations that set forth policies and procedures governing the exercise of this discretion. 25 C.F.R. Secs. 151.1-151.13. The Secretary, however, has retained the power to waive these regulations "in all cases where permitted by law and the Secretary finds that such waiver ... is in the best interest of the Indians." 25 C.F.R. Sec. 1.2.

On January 16, 1981, the Department took title to the land in the name of the United States. Mindful of the cultural significance of the land's proposed use, the Secretary decided to waive consideration of the regulations that purport to guide the exercise of his discretion. The Secretary reasoned that this land acquisition was unique, because Congress has directed that preservation of the American Indians' religious and cultural heritage is a national objective. See 42 U.S.C.A. Sec. 1996.

Shortly thereafter, the Tribe prepared an interment site for the remains, erected a museum for display of the artifacts, and built a center for exhibiting Indian art and craftware. In addition, the Tribe began operation of a "Smoke Shop" to sell cigarettes, tax free, to the general public. Dismayed by the Tribe's decision to sell cigarettes on this land, appellants commenced this lawsuit against the Department of the Interior and then-Secretary James Watt, alleging that 42 U.S.C.A. Sec. 1996 did not authorize the Secretary to waive consideration of the Department's regulations when acquiring the land in trust. Upon the Seminole Tribe's motion, the district court allowed the Tribe to intervene as a party-defendant. The United States and the Tribe each filed a motion to dismiss, arguing that none of the appellants had standing to maintain this action, and that in any event the suit was prohibited by the United States' sovereign immunity. Appellants sought to amend their complaint, alleging that the Seminole Tribe was also conducting bingo games on the land and refusing to collect the state tax on taxable sales transactions occurring on the land. In addition, appellants contended that the Hillsborough County property tax rolls listed the property as exempt from taxation. Without ruling on the motion to amend, the district court dismissed the complaint with prejudice, holding that the plaintiffs lacked standing and that the court lacked jurisdiction because of sovereign immunity.

A. Real Party in Interest

The United States' sovereign immunity operates as a complete bar to lawsuits, even those filed by the states. California v. Arizona, 440 U.S. 59, 61-62, 99 S.Ct. 919, 921-922, 59 L.Ed.2d 144 (1979); Minnesota v. United States, 305 U.S. 382, 387, 59 S.Ct. 292, 294, 83 L.Ed. 235 (1939). As a threshold matter in any case in which sovereign immunity is invoked, we must first determine whether the suit is one against the United States as sovereign. Panola Land Buyers Association v. Shuman, 762 F.2d 1550 (11th Cir.1985). Designation of a government agency or officer as party-defendant does not avoid the sovereign immunity problem. Alabama Rural Fire Insurance Co. v. Naylor, 530 F.2d 1221, 1225-26 (5th Cir.1976). Rather, we must examine the issues presented and the effect of the judgment sought. If the relief sought requires payment of monies from the Federal Treasury, interferes with public administration, or compels or restrains the government, the action is deemed to be one against the United States as sovereign. Stafford v. Briggs, 444 U.S. 527, 542 n. 10, 100 S.Ct. 774, 784 n. 10, 63 L.Ed.2d 1 (1980); Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999, 1006, 10 L.Ed.2d 15 (1963); Alabama Rural Fire Insurance Co., 530 F.2d at 1225 (5th Cir.1976). 2

Appellants contend that they seek judicial review of agency action, a suit with which the federal courts are quite familiar. Yet, from what we can discern from the sparse record before us, the action specifically challenged, that is, the decision to acquire the land and hold it in trust, was one in which appellants acquiesced when it was made. Only after the Seminole Tribe began selling cigarettes and operating bingo games on the land did appellants register their protest. The relief sought further indicates that the gravamen of appellants' suit is the Seminole Tribe's conduct, not the Secretary's decision to acquire the land. Appellants seek to divest the United States of its title to the land, restoring all parties involved to the status quo ante. With the United States no longer holding title to the land, the state presumably could take steps to end the actions to which it objects. Clearly, this relief would operate against the sovereign. See Hawaii v. Gordon, 373 U.S. 57, 83 S.Ct. 1052, 10 L.Ed.2d 191 (1963) (lawsuit seeking to order the United States to convey land to the state of Hawaii); Minnesota v. United States, 305 U.S. 382, 59 S.Ct. 292, 83 L.Ed. 235 (1939) (condemnation proceeding against property in which the United States had interest).

Relying on United States v. Lee, 106 U.S. 196, 1 S.Ct. 240, 27 L.Ed. 171 (1882), appellants argue that their lawsuit is not one against the United States as sovereign because their contention is that the Secretary exceeded his authority. We disagree. In Lee, the Court reviewed a claim that title to property held by the United States was obtained in an unconstitutional manner. If the claim were true, the Court observed, then the government officials exceeded their lawful power when acquiring the property in question. Such an assertion of governmental authority is not insulated from challenge in the courts, because when government officials exceed their authority their actions are not authorized by the sovereign. In such instances, a lawsuit can be maintained against the officials in their individual capacity, without sovereign immunity barring the way. 106 U.S. at 218-221, 1 S.Ct. at 258-262. Subsequent cases make clear that this exception from immunity applies only where the action is challenged as not one of the sovereign because it is alleged to be either unconstitutional or beyond the government agency's statutory authority. Dugan v. Rank, 372 U.S. 609, 621-22, 83 S.Ct. 999, 1006-07, 10 L.Ed.2d 15 (1963); Malone v. Bowdoin, 369 U.S. 643, 647, 82 S.Ct. 980, 983, 8 L.Ed.2d 168 (1962); Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 701-02, 69 S.Ct. 1457, 1467-68, 93 L.Ed. 1628 (1949). Only where the official's conduct cannot be attributed to the sovereign because the official had no power to do the challenged acts can it properly be said that the action is not one against the United States as sovereign. McClellan v. Kimball, 623 F.2d 83, 85 (9th Cir.1980); see also Gardner v. Harris, 391 F.2d 885, 888 (5th Cir.1968) ("Merely because the Superintendent may have been acting wrongfully in interfering with plaintiff's access to the highway, either as a matter of violation of property rights under the deeds or as a tort under principles of general law, does not amount to circumstances fulfilling the exception that the officer must be acting beyond his statutory powers.").

In the present case, there can be no doubt that there was statutory authority for the Secretary's decision to take the land in trust. 25 U.S.C.A. Sec. 465. Appellants do not challenge the constitutionality of the Secretary's acts, nor the constitutionality of the statute pursuant to which he acted. Nor do they suggest that the...

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