Temple v. Roberts, CIV. 15-5062-JLV
| Decision Date | 30 September 2019 |
| Docket Number | CIV. 15-5062-JLV |
| Parties | CURTIS TEMPLE, Plaintiff, v. LAWRENCE ROBERTS, Assistant Secretary of Indian Affairs, Department of Interior, Bureau of Indian Affairs; TIM LAPOINTE, Northern Plains Regional Director, Department of Interior, Bureau of Indian Affairs; JOHN LONG, Acting Superintendent, Pine Ridge Agency, Department of Interior, Bureau of Indian Affairs; LIONEL WESTON, Branch of Realty, Pine Ridge Agency, Bureau of Indian Affairs, Department of Interior, Defendants. |
| Court | U.S. District Court — District of South Dakota |
INTRODUCTION
Plaintiff Curtis Temple initiated this action in response to federal officials impounding his livestock in 2015 and 2016. After three years of litigation, the court ordered plaintiff to file a second amended complaint. (Docket 147). Now pending before the court is defendants' motion to dismiss portions of the second amended complaint. (Docket 153). Defendants also ask the court to dismiss the complaint against them and substitute the agency or the United States as defendant. (Docket 154). Plaintiff opposes both motions. (Docket 159). The court grants defendants' motion to dismiss in part and denies it in part. The court denies defendants' motion to substitute parties.
I. Facts
The court summarized the facts of this case in a previous order. (Docket 55 at pp. 2-10).1 The Oglala Sioux Tribal Court recently entered an order making extensive factual findings in plaintiff's related tribal cases.2 (Docket 180-1 at pp. 2-13). The court will refer to these facts and others as necessary in this order, but declines to make new factual findings.
II. Legal Standards
Under Federal Rule of Civil Procedure 12(b)(1), a defendant has the right to challenge the "lack of subject-matter jurisdiction[.]" Fed. R. Civ. P. 12(b)(1). While considering a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, the court must "accept all factual allegations in the pleadings as true and view them in the light most favorable to the nonmoving party." Great Rivers Habitat All. v. Fed. Emergency Mgmt. Agency, 615 F.3d 985, 988 (8th Cir. 2010). The court "has authority to consider matters outside the pleadings when subject matter jurisdiction is challenged under Rule 12(b)(1)." Harris v. P.A.M. Transp., Inc., 339 F.3d 635, 637 n.4 (8th Cir. 2003) (internal quotation omitted). "The burden of proving federal court jurisdiction is on the party seeking to invoke federal jurisdiction." Mitchael v. Colvin, 809 F.3d 1050, 1053 (8th Cir. 2016) (citing Great Rivers, 615 F.3d at 988).
III. Motion to Dismiss
Defendants ask the court to dismiss portions of plaintiff's second amended complaint on two grounds. First, they assert plaintiff failed to exhaust his administrative remedies regarding some of his claims. (Docket 155 at pp. 4-15). Second, they argue some of plaintiff's claims should be stricken because they contravene the court's prior orders dismissing pre-impoundment and damage calculation claims. Id. at pp. 17-19. In response to the administrative exhaustion argument, plaintiff asserts he has two pending appeals before the Interior Board of Indian Appeals ("IBIA") related to his federal claims and that the exhaustion requirement does not apply. (Docket 159 at pp. 2-7). Plaintiff also argues his second amended complaint does not violate the court's prior orders outlining the scope of this litigation. Id. at pp. 7-9.
At the outset, the court notes the parties do not agree on which Federal Rule of Civil Procedure governs this motion. Defendants characterize their motion as one seeking to dismiss for lack of subject matter jurisdiction, which falls under Rule 12(b)(1). (Docket 115 at p. 3). But they also cite the Rule 12(b)(6) standard in case "the court views the motion to dismiss" under that Rule. Id. at p. 4. Plaintiff cites only the Rule 12(b)(6) standard. (Docket 159 at pp. 1-2).
Rule 12(b)(1) governs this motion because defendants allege the court lacks subject matter jurisdiction over plaintiff's unexhausted claims. Plaintiff's claims against defendants—who are all agents of the United States—mayproceed only if the United States has waived its sovereign immunity. Great Rivers, 615 F.3d at 988. The court previously held plaintiff's claims could proceed under the Administrative Procedures Act ("APA"). (Docket 55 at pp. 16-27). The APA requires exhaustion "only when expressly required by statute or when an agency rule requires appeal before review and the administrative action is made inoperative pending that review." Darby v. Cisneros, 509 U.S. 137, 154 (1993). Department of Interior ("Interior") and Bureau of Indian Affairs ("BIA") regulations state that "[n]o decision of a[] . . . BIA official that at the time of its rendition is subject to appeal to the [IBIA] will be considered final so as to constitute agency action subject to judicial review under" the APA. 43 C.F.R. § 4.314; see also 25 C.F.R. § 2.6 (). Because Interior and BIA rules require exhaustion, the court concludes exhaustion is a prerequisite to proceeding under the APA's waiver of sovereign immunity. See Estate of Sauser v. United States, 171 F. Supp. 3d 947, 954 (D.S.D. 2016) (reaching same conclusion); Crow Creek Sioux Tribe v. Bureau of Indians Affairs, 463 F. Supp. 2d 964, 968 (D.S.D. 2006) (same). Whether plaintiff exhausted his administrative remedies is a jurisdictional inquiry properly evaluated under Rule 12(b)(1).
A. Failure to exhaust administrative remedies
There is significant confusion in the parties' briefing about which claims are subject to exhaustion, which claims are currently on appeal to the IBIA, andhow these factors affect the court's jurisdiction. Some of this confusion can be traced to the court's order granting in part and denying in part defendants' first motion to dismiss, which exempted some of plaintiff's claims related to the impoundment of his livestock from the administrative exhaustion requirement.3 (Docket 55 at pp. 16-27). Plaintiff nevertheless proceeded to administratively appeal the impoundment claims the court found to be exempt from exhaustion. The court determines it is appropriate to stay plaintiff's impoundment and impoundment-related claims pending resolution of the administrative appeal process. However, the court concludes dismissing plaintiff's public sale and land survey claims for lack of exhaustion is warranted.
1. Impoundment claims
The court previously held plaintiff's "Fifth Amendment due process claims relating to the impoundment of his cattle" and his "APA claim stemming from the impoundment" were exempt from the exhaustion requirement. Id. at pp. 23, 26. This order, filed on February 19, 2016, only addressed the 2015 impoundment. The 2016 impoundment did not occur until June 21, 2016. (Docket 152 at ¶ 37). The court reasoned that impounding the livestock was a final agency action and that the nature of defendants' proposed actions—selling or slaughtering the cattle—weighed against requiring exhaustion, as defendants'"ability to correct [their] mistake is necessarily limited[.]" (Docket 55 at pp. 24-26).
Plaintiff is proceeding with administrative review of the impoundment decisions. He asserts he is currently appealing the 2015 and 2016 impoundments. (Dockets 152 at ¶¶ 24 & 33 & 159 at pp. 5-7). Plaintiff did not provide the court with any information about the status of his IBIA appeals. He states only that the appeals are "pending and ongoing."4 (Docket 159 at p. 3).
Considering the changed factual circumstances of this case and plaintiff's choice to proceed with the administrative appeal process, the court finds it is appropriate to stay consideration of the impoundment claims pending resolution of the IBIA appeals. The court's February 19, 2016, order exempting plaintiff's impoundment claims from the exhaustion requirement was based at least in part on the gravity of the harm that would be inflicted on plaintiff if defendants sold or slaughtered his cattle. (Docket 55 at pp. 24-26). At that point, the court anticipated resolving plaintiff's claims prior to the sale or slaughter of his livestock. That plan did not come to pass. (Docket 147 at pp. 2-4) ( procedural delays). Since the court's previous order, the BIA sold or slaughtered the cattle impounded in 2015 and plaintiff redeemed the cattleimpounded in 2016.5 (Dockets 118-1 at p. 2 & 118-2 at pp. 2-3). The court's concern about the harm to plaintiff stemming from the BIA's prolonged impoundment of his livestock is now moot.
In addition, plaintiff's choice to administratively appeal the 2015 and 2016 impoundments weighs in favor of granting a stay to allow the appeal process to conclude.
The purpose of exhaustion is to prevent "premature interference with agency processes, so that the agency may function efficiently and so that it may have an opportunity to correct its own errors, to afford the parties and the court the benefit of its experience, and to complete a record which is adequate for judicial review."
Ace Property & Cas. Ins. Co. v. Federal Crop Ins. Co., 440 F.3d 992, 1001 (8th Cir. 2006) (quoting Weinberger v. Salfi, 422 U.S. 749, 765 (1975)). The administrative record being developed before the IBIA will undoubtedly prove useful in resolving plaintiff's impoundment claims, should the appeals be decided adversely to plaintiff. And, of course, it is entirely possible the IBIA will grant plaintiff the relief he seeks, obviating this action. The court finds the reasoning behind the exhaustion requirement applies to this case.
However, the court does not agree with the government that dismissal of the impoundment claims is appropriate in this situation. Plaintiff has not failed to exhaust his administrative remedies—he has simply not yet finishedexhausting them. The IBIA is the administrative tribunal of last resort with regard to claims against BIA action. 43 C.F.R. §...
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