Utu Utu Gwaitu Paiute Tribe v. Dept. of Interior

• Citation: 766 F. Supp. 842
• Decision Date: 06 June 1991
• Docket Number: Civ. No. S-90-0311-WBS.
• Court: U.S. District Court — Eastern District of California
• Parties: UTU UTU GWAITU PAIUTE TRIBE OF the BENTON PAIUTE RESERVATION, Plaintiff, v. DEPARTMENT OF the INTERIOR; Manual Lujan, Secretary of the Department of Interior; Bureau of Indian Affairs; Eddie Brown, Indian Affairs, Defendants.

766 F. Supp. 842

UTU UTU GWAITU PAIUTE TRIBE OF the BENTON PAIUTE RESERVATION, Plaintiff, v. DEPARTMENT OF the INTERIOR; Manual Lujan, Secretary of the Department of Interior; Bureau of Indian Affairs; Eddie Brown, Indian Affairs, Defendants.

Civ. No. S-90-0311-WBS.

United States District Court, E.D. California.

June 6, 1991.

Jay B. Petersen, Lawrence R. Stidham, Dorothy Alther, Michael S. Pfeffer, Stephen V. Quesenberry, California Legal Services, Oakland, Cal., for plaintiff.

Richard Jenkins, U.S. Atty., Debora Van Der Weijde, Asst. U.S. Atty., Sacramento, Cal., for defendants.

OPINION

SHUBB, District Judge.

I. INTRODUCTION

Plaintiff Utu Utu Gwaitu Paiute Tribe ("Tribe") filed this complaint for declaratory and injunctive relief under the Administrative Procedure Act ("APA") to challenge the validity of 43 C.F.R. § 4.603(a). The Department of Interior ("Department") promulgated rules, among them § 4.603, for the purpose of establishing "procedures for the submission and consideration of applications for awards of attorney fees and costs against the Department" in order to implement the Equal Access to Justice Act ("EAJA"), 5 U.S.C. § 504. The purpose of the EAJA is to reduce the deterrents and disparity between individuals and the government "by entitling certain prevailing parties to recover an award of attorney fees, expert witness fees and other expenses against the United States unless the government action was substantially justified." H.R.Rep. No. 1418, 96th Cong., 2d Sess. 6, reprinted in, 1980 U.S.Code Cong. & Admin.News 4984, 4984.

Section 4.603(a) provides:

These rules apply to adversary adjudications required by statute to be conducted by the Secretary under 5 U.S.C. § 554. Specifically, these rules apply to adjudications conducted by the Office of Hearings and Appeals under 5 U.S.C. § 554 which are required by statute to be determined on the record after opportunity for an agency hearing. These rules do not apply where adjudications on the record are not required by statute even though hearings are conducted using procedures comparable to those set forth in 5 U.S.C. § 554. Emphasis added. The Department interprets and applies § 4.603 to deny attorney fees under the EAJA in hearings that are constitutionally mandated but not expressly "required by statute."

The Tribe contends that the regulation, as so interpreted and applied, is contrary to the EAJA and Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616, modified on other grounds, 339 U.S. 908, 70 S.Ct. 564, 94 L.Ed. 1336 (1950). Jurisdiction is predicated on 28 U.S.C. § 1331 and 5 U.S.C. §§ 702, 704, and 706 of the APA.

Defendants have filed a motion to dismiss, or in the alternative, motion for summary judgment, on the ground that the action is time-barred by the statute of limitations, 28 U.S.C. § 2401(a). The Tribe has filed a motion for summary judgment on the merits. Defendants oppose this motion and counter-move for summary judgment.

II. PROCEDURAL AND FACTUAL BACKGROUND

On December 23, 1987, the Tribe appealed a November 24, 1987 decision of the Sacramento Area Director, Bureau of Indian Affairs ("BIA"), to the Commissioner of Indian Affairs. That decision denied the Tribe compensation under the fifth amendment of the United States Constitution for the taking of a right-of-way for a BIA road crossing the Tribe's reservation. The Interior Board of Indian Appeals ("Board") assumed jurisdiction over the Tribe's appeal in April, 1988. On February 22, 1989, the Board remanded the case to the Area Director with instructions to prepare a new appraisal of the right-of-way consistent with federal law.

On March 27, 1989, the Tribe filed an application with the Board under 5 U.S.C. § 504 of the EAJA for attorney fees and expenses. The Board denied the application on June 19, 1989 pursuant to 43 C.F.R. § 4.603(a), on the ground that the agency adjudication denying the Tribe compensation for the right-of-way, was not mandated by statute. Section 4.603(a), as interpreted and applied, limits EAJA fees to adjudications which are "required by statute to be determined on the record after opportunity for an agency hearing." The Board therefore ruled that the adjudication was not within the scope of § 4.603(a). The Board did not consider the merits of the Tribe's regulatory challenge on the ground that it lacked jurisdiction to invalidate § 4.603(a).

In this action, filed March 12, 1990, the Tribe specifically requests that § 4.603(a) be declared to be invalid under the EAJA and the APA. In addition, the Tribe asks the court to remand its EAJA application to the Board for consideration of the merits of the application and to award attorney fees and costs herein.

III. DISCUSSION

A. Defendants' Motion to Dismiss or Motion for Summary Judgment.

In the absence of a more specific statute of limitations, "every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues." 28 U.S.C. § 2401(a). While neither party disputes that 28 U.S.C. § 2401(a) is the proper statute of limitations, defendants contend, relying on Shiny Rock Mining Corp. v. United States, 906 F.2d 1362, 1364 (9th Cir.1990) ("Shiny Rock III"), that the Tribe's challenge began to run against the Tribe as of the date of publication of the regulation in the Federal Register and is therefore barred by the statute of limitations because it was not filed within six years of that date.¹ The court disagrees.

1. Shiny Rock III Applies to Procedural Challenges.

There is a distinction between a procedural challenge and a substantive challenge to an administrative regulation. In a procedural challenge, the plaintiff seeks to establish the invalidity of a regulation "based on the procedural adoption of the regulation." Sierra Club v. Penfold, 857 F.2d 1307, 1315 (9th Cir.1988). In Penfold, the Sierra Club claimed that in adopting the challenged regulations, the Bureau of Land Management "failed to follow the procedures required by the National Environmental Policy Act and the Alaska National Interest Lands Conservation Act." Id. at 1310-11. A more common procedural challenge concerns the failure of the administrative agency in question to comply with the notice and comment provisions of the APA, 5 U.S.C. § 553, prior to final publication of the regulation. See, e.g., Chemical Waste Management v. United States Envtl. Protection Agency, 869 F.2d 1526, 1529 (D.C.Cir.1989). Thus, in a procedural challenge, it is the manner in which the regulation was adopted which is in issue; the content or substance of the regulation is irrelevant.

Challenges alleging the existence of a procedural irregularity concerning the promulgation of a regulation must be brought within six years from the date the regulation was published in the Federal Register. Penfold, 857 F.2d at 1315-16 (procedural challenge barred by 28 U.S.C. § 2401(a) because not filed within six years of the date the regulation was published in the Federal Register).

In a substantive challenge, on the other hand, the legality of substance of the regulation is in issue. Typically, a substantive challenge is based on grounds that it exceeds statutory authorization, or that its authorizing legislation is unconstitutional. Regulations are subject to both "facial" and "as applied" attacks. See e.g., Rust v. Sullivan, ___ U.S. ___, ___, 111 S.Ct. 1759, 1764, 114 L.Ed.2d 233 (1991) (facial challenge to "regulations which limit ability of Title X fund recipients to engage in abortion related activities" brought on statutory and constitutional grounds); Coit Independence Joint Venture v. FSLIC, 489 U.S. 561, 566 & 586, 109 S.Ct. 1361, 1365 & 1375, 103 L.Ed.2d 602 (1989) (as applied challenge to regulations applied by FSLIC to bar creditors of insolvent savings and loan associations from adjudicating claims in court pending exhaustion of administrative remedies brought on statutory and constitutional grounds).

The Tribe's challenge does not relate to the manner in which § 4.603 was adopted. Rather, the Tribe alleges that the regulation as applied is inconsistent with the EAJA and Wong Yang Sung and is therefore properly characterized as a substantive, "as applied" challenge. For the reasons discussed below, the court concludes that Shiny Rock III merely applied Penfold to preclude litigation of a procedural challenge brought more than six years after the regulation was published in the Federal Register.

The facts and procedural background of Shiny Rock III are set forth in Shiny Rock III and Shiny Rock Mining Corp. v. United States, 825 F.2d 216 (9th Cir.1987) ("Shiny Rock II"), aff'g in part and rev'g in part, Shiny Rock Mining Corp. v. United States, 629 F.Supp. 877 (D.Or.1986) ("Shiny Rock I"). In that case, plaintiff mining company first learned that certain lands had been withdrawn from appropriation under the United States mining laws in 1981 sometime after filing an application for a mineral patent; that application was denied by the Bureau of Land Management ("BLM") in 1983. Shiny Rock III, 906 F.2d at 1363. The lands in question were withdrawn by certain Public Land Orders ("Orders") published in December, 1964 in the Federal Register. Id. The mining company argued that application of the Orders to it would constitute a violation of due process and would validate "the unconstitutional actions of the BLM, that is, the alleged failure of BLM to follow its regulations in withdrawing the land at issue." Shiny Rock II, 825 F.2d at 218. The Shiny Rock II court appeared to characterize the mining company's challenge as "procedural," referring to Shiny Rock's allegation that the Order "was improperly promulgated and implemented" because the "public notices did not comply with federal regulations and that the withdrawal violated the Multiple Use Act of 1955." Id. at 219. The Shiny Rock II court remanded for consideration of this regulatory...