Timbisha Shoshone Tribe v. Salazar

• Decision Date: 16 March 2010
• Docket Number: Case No. CV F 09-2230 LJO SMS.
• Court: U.S. District Court — Eastern District of California
• Parties: TIMBISHA SHOSHONE TRIBE, Edward Beaman, Virginia Beck, Cleaveland Lyle Casey, George Gholson, Margaret Cortez, and Bill Eddy, Plaintiffs, v. Ken SALAZAR, Secretary of the Interior, Larry Echo Hawk, Assistant Secretary of the Bureau of Indian Affairs, Dale Morris, Regional Director, Pacific Regional Office, Bureau of Indian Affairs, and the United States Department of the Interior, Defendants.

697 F. Supp.2d 1181

TIMBISHA SHOSHONE TRIBE, Edward Beaman, Virginia Beck, Cleaveland Lyle Casey, George Gholson, Margaret Cortez, and Bill Eddy, Plaintiffs,
v.
Ken SALAZAR, Secretary of the Interior, Larry Echo Hawk, Assistant Secretary of the Bureau of Indian Affairs, Dale Morris, Regional Director, Pacific Regional Office, Bureau of Indian Affairs, and the United States Department of the Interior, Defendants.

Case No. CV F 09-2230 LJO SMS.

United States District Court, E.D. California.

March 16, 2010.

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Joseph L. Kitto, PHV, Sovereign Systems, LLC, Albuquerque, NM, Kelly Francis Ryan, The Ryan Law Firm, APC, Pasadena, CA, for Plaintiffs.

Sylvia Ann Quast, United States Attorney's Office, Sacramento, CA, for Defendants.

ORDER ON PLAINTIFFS' PRELIMINARY INJUNCTION MOTION(Doc. 11)

LAWRENCE J. O'NEILL, District Judge.

INTRODUCTION

Plaintiffs Timbisha Shoshone Tribe ("Tribe"),¹ Edward Beaman ("Mr. Beaman"), Virginia Beck ("Ms. Beck"), Cleaveland Lyle Casey ("Mr. Casey"), George Gholson ("Mr. Gholson"), Margaret Cortez ("Ms. Cortez"), and Bill Eddy ("Mr. Eddy") (collectively "Plaintiffs") move for a preliminary injunction, pursuant to Fed. R.Civ.P. 65, against federal defendants Ken Salazar, Larry Echo Hawk, Dale Morris, and the United States Department of the Interior (collectively "the BIA"). Plaintiffs seek an order from this Court to: (1) require the BIA to recognize one of the two November 10, 2009 Tribe General Elections; (2) require the BIA to recognize the validity of Plaintiffs' actions since 2007; (3) enjoin the BIA from reviewing or making decisions regarding the alleged disenrollment of Plaintiffs from the Tribe; (4) declare that all pending appeals and proceedings between the Tribe and the BIA are moot; and (5) declare that the BIA's failure to decide the administrative appeals in a timely manner constitutes agency action that is unreasonably delayed or unlawfully withheld. For the following reasons, this Court DENIES Plaintiffs' motion for preliminary injunction.

BACKGROUND

The instant action is the third in a series of federal district court actions filed by the Tribe against the BIA. See, Timbisha Shoshone Tribe v. Kempthorne, Case No. 2:08-CV-0360 MCE DAD. RJN, Ex. 24-25 ("Timbisha I") (case dismissed voluntarily); Timbisha Shoshone Tribe v. Salazar, Case No. 2:09-CV-246 MCE DAD ("Timbisha II") (case dismissed as moot when BIA decided an appeal bought by Plaintiffs). A more comprehensive background of the dispute is detailed in Timbisha Shoshone Tribe v. Kennedy, 687 F.Supp.2d 1171 (E.D.Cal.2009) ("Timbisha III"). The Court presents the facts relevant to this motion here.

Since 2007, dueling factions have contested the governance of the Tribe fiercely.² The last undisputed Tribal Council

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election occurred in November 2006. The Tribal Council elected in November 2006 consisted of: Joseph Kennedy ("Mr. Kennedy"), Mr. Beaman, Ms. Casey, Mr. Casey and Ms. Beck (collectively "Rollback Council"). A dispute erupted at an August 25, 2007 meeting of the Rollback Council, resulting in the emergence of two competing factions. Plaintiffs are associated with the faction based out of Bishop, California ("Bishop faction"). The Bishop faction is led by Ms. Beck and Mr. Beaman. The other faction, based out of Death Valley, California ("Death Valley faction"), is led by Mr. Kennedy. The Bishop and Death Valley factions have held separate elections, and run parallel and competing tribal governments, since the August 2007 Rollback Council meeting. Each faction disputes the actions and validity of the other, and both have appealed to the BIA

Consolidated Appeals

Two consolidated and unresolved appeals are ostensibly the subject of this current action. On June 22, 2009, defendant Larry Echo Hawk, Assistant Secretary-Indian Affairs, consolidated the appeals from defendant Regional Director Dale Morris' February and March 2009 decisions, pursuant to 25 C.F.R. § 2.18. Director Morris' February 2009 decision reversed a February 29, 2008 decision to find, among other things, that the actions at the August 2007 meeting to remove Ms. Beck and Mr. Beaman violated tribal law. Director Morris' March 2009 decision reversed an October 17, 2008 decision, and concluded that the Bishop faction's removal of Mr. Kennedy was improper. In each decision, Director Morris concluded that he was unable to establish that any subsequent tribal councils were formed properly. Accordingly, Director Morris continued to recognize the last undisputed tribal council for government-to-government purposes; namely, the Rollback Council.

The Death Valley faction requested to extend the briefing deadline on the consolidated appeals to allow for comments on the administrative record. Plaintiffs Mr. Gholson and Mr. Cortez agreed to continue the briefing schedule until the BIA considered the parties' comments to the administrative record. The parties, including Plaintiffs, then filed numerous objections to the administrative record and moved to supplement the record. The BIA resolved the motions and objections. In addition, the BIA undertook to reorganize the administrative record because of difficulties experiences by all parties.

With the administrative record organized and related issues and motions resolved, the BIA set a briefing schedule on February 19, 2010. Porter Decl., Ex. B ("Scheduling Order"). Opening briefs on the appeals are on March 19, 2010. Briefing will close April 30, 2010. Pursuant to 25 C.F.R. § 2.20(c), the BIA will issue its decision within 60 days of receiving the last filing. Accordingly, the BIA expects to issue a decision on the appeals no later than June 29, 2010.

Post-Appeal Actions

Disenrollment

On December 27, 2008, the 2008 Death Valley Tribal Council purportedly disenrolled Plaintiffs, among others, from the Tribe. Plaintiffs do not recognize this disenrollment and seek an order from this Court to enjoin the BIA from reviewing or making decisions regarding the alleged disenrollment of Plaintiffs from the Tribe. In the Briefing Order, the BIA acknowledged the purported:

Subsequent to the consolidation of these appeals, information was submitted purporting to show that 74 members of the Timbisha Shoshone Tribe have been disenrolled. I acknowledge and support the well-settled presumption that enrollment matters are one of the most central

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manifestations of tribal sovereignty, beyond the Federal Government's jurisdiction. But the validity of the representatives purporting to represent the tribe in government-to-government dealings with the United States is a threshold matter. In light of the fact that the Department does not recognize the Tribal Council that approved the Enrollment Committee's disenrollment recommendations, I cannot give any weight to the disenrollments approved by that Tribal Council.

November 2009 Elections

Pursuant to Tribal law, elections are held each November. On November 10, 2009, the Bishop faction elected a new Tribal Council, consisting of Ms. Beck, Mr. Casey, Mr. Gholson, Mr. Eddy, and Ms. Cortez. The Death Valley faction held a parallel election to elect a separate Death Valley Tribal Council in November 2009. The terms of all members of the Rollback Council have expired.

Instant Action

Plaintiffs contend that the factional dispute "has become a paralytic event due solely to the BIA's mismanagement, incompetence and bias in handling its duties." Plaintiffs argue that the BIA "has haphazardly stymied, stalled, and stopped the Timbisha Shoshone from resolving internal issues through a series of decisions, reversals, and incomprehensible delays." Plaintiffs initiated this action based on the BIA's "failure to comply with its regulations, breach of trust responsibilities, and failure to maintain government-to-government relations with a federally-recognized tribe." Plaintiffs December 23, 2009 complaint for declaratory and injunctive relief seeks the following "claims for relief:" (1) agency decisions unreasonably delayed; (2) breach of trust responsibility, for failure to accept appeals based on determinable issues of fact or law and failure to decide appeals in a reasonable time; (3) violation of the Administrative Procedures Act for failure to accept appeals based on a determined issue of fact or law and failure to decide appeals in a reasonable time; and (4) proposed agency review of purported disenrollment would violate due process rights.

On January 5, 2010, Plaintiffs moved for a preliminary injunction, noticing a hearing date for March 15, 2010. The BIA opposed the motion on March 1, 2010. Plaintiffs replied on March 8, 2010. The Court found this motion suitable for a decision without a hearing and vacated the March 15, 2010 hearing pursuant to Local Rule 230(g). Having considered the parties' arguments, declarations, and exhibits, and the record, this Court issues the following order.

PRELIMINARY INJUNCTION MOTION

Standard of Review

A "preliminary injunction is an extraordinary and drastic remedy." Munaf v. Geren, 553 U.S. 674, 128 S.Ct. 2207, 2219, 171 L.Ed.2d 1 (2008). As such, the Court may only grant such relief "upon a clear showing that the plaintiff is entitled to such relief." Winter v. Nat'l Res. Def. Council, Inc., ___ U.S. ___, 129 S.Ct. 365, 375, 172 L.Ed.2d 249 (2008). To prevail, the moving party must show:(1) a likelihood of success on the merits; (2) a likelihood that the moving party will suffer irreparable harm absent a preliminary injunction; (3) that the balance of equities tips in the moving party's favor; and (4) that an injunction is in the public interest. Id. at 374.³ In considering the four factors,

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the Court "must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief." Winter, 129 S.Ct. at 376 (quoting Amoco Co. v. Vill. of Gambell, Alaska, 480 U.S. 531 542, 107 S.Ct. 1396,...