Villegas v. United States

• Decision Date: 30 January 2013
• Docket Number: No. CV–12–0001–EFS.,CV–12–0001–EFS.
• Citation: 926 F.Supp.2d 1185
• Court: U.S. District Court — District of Washington
• Parties: Donnelly R. VILLEGAS, an enrolled member of the Spokane Tribe of Indians, Plaintiff, v. UNITED STATES of America; Department of the Interior; Bureau of Indian Affairs; Bureau of Land Management; Bureau of Safety and Environmental Enforcement (formerly the Minerals Management Service); Environmental Protection Agency; Office of Natural Resources Revenue; Lisa P. Jackson; Stan Speaks; Kenneth L. Salazar; Robert Abbey; James Watson; and Estate of Willard Sharpe, Defendants.

926 F.Supp.2d 1185

Donnelly R. VILLEGAS, an enrolled member of the Spokane Tribe of Indians, Plaintiff,

v.UNITED STATES of America; Department of the Interior; Bureau of Indian Affairs; Bureau of Land Management; Bureau of Safety and Environmental Enforcement (formerly the Minerals Management Service); Environmental Protection Agency; Office of Natural Resources Revenue; Lisa P. Jackson; Stan Speaks; Kenneth L. Salazar; Robert Abbey; James Watson; and Estate of Willard Sharpe, Defendants.

No. CV–12–0001–EFS.

United States District Court, E.D. Washington.

Jan. 30, 2013.

Gabriel S. Galanda, Anthony Stephen Broadman, Ryan David Dreveskracht, Galanda Broadman PLLC, Seattle, WA, for Plaintiff.

Jody Helen Schwarz, Reuben S. Schifman, U.S. Department of Justice, Washington, DC, for Defendants.

ORDER GRANTING FEDERAL DEFENDANTS' MOTION TO DISMISS

EDWARD F. SHEA, Senior District Judge.

I. INTRODUCTION

This matter comes before the Court on Defendants United States of America, Department of the Interior (“DOI”), Bureau of Indian Affairs (“BIA”), Bureau of Land Management (“BLM”), Bureau of Safety and Environmental Enforcement (“BSEE”), Office of Natural Resources Revenue (“ONRR”), Environmental Protection Agency (“EPA”), Lisa P. Jackson, Stan Speaks, Kenneth L. Salazar, Robert Abbey, and James Watson's (collectively, “Federal Defendants”) Motion to Dismiss, ECF No. 61. Federal Defendants contend that Plaintiff Donnelly Villegas's claims must be dismissed because Federal Defendants are immune from suit and have not waived sovereign immunity.

Additionally, Federal Defendants argue that each of the claims and requested relief sought by Plaintiff is independently barred. First, Federal Defendants contend that injunctive relief is foreclosed 1) pursuant to the jurisdictional constraints imposed by the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §§ 9601–9675, and 2) because Plaintiff failed to join the Spokane Tribe, an indispensable party. Second, Federal Defendants contend that declaratory judgment is improper because the sole effect of such declaratory relief is to establish res judicata with respect to Plaintiff's separately-asserted Takings Clause claim. And lastly, Federal Defendants contend that each of Plaintiff's remaining claims, to the extent he seeks monetary damages, must be dismissed because: a) Plaintiff's Takings and contract claims are subject to the exclusive jurisdiction of the Court of Federal Claims; b) Plaintiff's tort claims are unexhausted and procedurally barred by the Federal Tort Claims Act (FTCA); and c) Plaintiff's claim for violations of the Administrative Procedures Act (APA) is unexhausted and insufficiently pled.

The Court concludes that CERCLA deprives this Court of jurisdiction to grant Plaintiff the injunctive relief he seeks, as the requested relief constitutes a challenge to an ongoing removal or remedial action under CERCLA. The Court also concludes that Plaintiff is not entitled to declaratory relief because a) such relief is subsumed by his Takings claim and, if granted, would impermissibly short-circuit the exclusive jurisdiction of the Court of Federal Claims; b) Plaintiff lacks standing to seek equitable relief for past injuries; and c) declaratory relief is not warranted in this case, as it will not resolve the parties' dispute or terminate the proceedings.

The only remaining form of relief Plaintiff seeks in his Complaint is monetary damages; accordingly, the Court analyzes his remaining claims in that context. First, Plaintiff's Takings and contract claims are only cognizable before the Court of Federal Claims, because Federal Defendants have not waived sovereign immunity for such claims in this Court. Second, Plaintiff's tort claims are barred because the FTCA imposes an administrative-exhaustion prerequisite on its sovereign immunity waiver, and Plaintiff has not shown that his tort claims are administratively exhausted. Third, Plaintiff's claim for APA violations must also be dismissed because a) Plaintiff's Complaint fails to sufficiently identify the alleged APA violations; and b) Plaintiff's claim is predicated on arbitrary and capricious agency action, but Plaintiff has not identified any “final” agency action which is subject to the APA's waiver of sovereign immunity. Finally, although Plaintiff may have an accounting for profits claim, he failed to assert this claim in his Complaint.

Because Federal Defendants have not waived sovereign immunity before this Court with respect to the claims and relief asserted in Plaintiff's Complaint, the Court grants Federal Defendant's Motion to Dismiss, ECF No. 61, and dismisses the Complaint without prejudice.

II. BACKGROUND

A. Factual History¹

Plaintiff Donnelly Villegas is an enrolled member of the Spokane Tribe of Indians (hereinafter, “Spokane Tribe”), a federally-recognized Indian tribe. The Spokane Indian Reservation was created on January 18, 1881, by Executive Order of President Rutherford B. Hayes. In 1902, Congress opened the Spokane Reservation to mineral development, providing that the Reservation “shall be subject to entry under the laws of the United States in relation to the entry of mineral lands.” Act of May 27, 1902, ch. 888, 32 Stat. 245 (1902). In a Joint Resolution adopted later that year, Congress directed the Secretary of the Interior to “make allotments in severalty to the Indians of the Spokane Indian Reservationin the State of Washington, and upon the completion of such allotments[,] the President shall by proclamation give public notice thereof, whereupon the lands in said reservation not allotted to Indians or used or reserved by the Government, or occupied for school purposes, shall be opened to exploration, location, occupation, and purchase under the mining laws.” Cong. J. Res. 31, 32 Stat. 744 (1902). In 1908, Congress directed the Secretary of the Interior to make allotments to all members of the Spokane Tribe who had not yet received allotments, and to sell and dispose of all unallotted “surplus” lands for use in agriculture and timber production. Act of May 29, 1908, 35 Stat. 458 (1908). This process of allotment and distribution was consistent with the United States' policy of “assimilation” of Indian tribes in the period surrounding the turn of the nineteenth century.

1. Allotment No. 156

In 1910, pursuant to the Acts of Congress described above, Allotment No. 156 was issued to Edward Boyd. The issuing instrument stated that 1) the United States would hold the land in trust for twenty-five years for the sole use and benefit of Mr. Boyd, and 2) that at the end of that period, the United States would convey title to the 120–acre property to Mr. Boyd or his heirs. Mr. Boyd died intestate in 1939, at which time his interest in the allotment was divided between his spouse and six children. By 1956, following the death of a number of Mr. Boyd's children, the interests in the allotment became concentrated in Lucy and Richard Boyd.

In a 1973 order entered in an otherwise-unspecified adjudication titled In the Matter of the Estates of Richard Boyd, a one-half interest in Allotment No. 156 was awarded to the Spokane Tribe, and the remaining 60–acre interest was divided equally between Plaintiff and his sister, Ortencia Ford. As part of this probate settlement, Plaintiff was also awarded an interest in stockpiles of high-grade uranium located in Ford, Washington. The funds derived from these interests were to be paid into a trust account for the benefit of Plaintiff and his sister, managed by William Sharpe ² and ONB Bank and Trust until October 1974.

Fee title to the land was never transferred to Mr. Boyd or his heirs; ³ however, Plaintiff retains his one-half interest in a 60–acre portion of Allotment No. 156, which is currently held in trust by the United States.

2. Establishment of the Midnite Mine

In 1954, Defendant Dawn Mining Company, LLC (hereinafter “Dawn Mining”) leased approximately 571 acres of the Spokane Indian Reservation from the United States for the purpose of mining uranium. Floyd H. Phillips, Superintendent of Defendant DOI's Colville Indian Agency, entered into the lease “for and on behalf of the Spokane Tribe of Indians.” Compl. ¶ 33, at 11. The 1954 lease included unallotted land that was part of the original Spokane Reservation, as well as the entirety of Allotment No. 156. In 1956, the Superintendent of the Colville Indian Agency again leased the allotment to Dawn Mining and Newmont USA Ltd. (hereinafter “Newmont”) for a period of 15 years because “the individual Indian ownership was not entirely clear due to pending probate.” Id. ¶ 35. Both leases were approved by Defendant BIA's Acting Area Director. Mr. Boyd's heirs were neither consulted about nor informed of either lease.

The 1956 lease required Dawn Mining and Newmont to submit monthly reports to the Superintendent of the Colville Indian Agency and to pay annual rents and royalties directly to the Superintendent, who would then issue rents and royalties to the allottees. The Superintendent was also tasked with directing audits of each lessee's accounts and books, while the Mineral Management Service was tasked with conducting audits of the rents and royalties paid to the Colville Indian Agency. Both the 1954 and 1956 leases also provided the Secretary of the Interior with the authority to 1) suspend mining operations, 2) collect a bond, 3) inspect the property, 4) approve the lessee's attempts to terminate the lease upon showing that full provision had been made for the conservation and protection of the property, and 5) terminate each lease for violations of the lease's terms and conditions. In 1964, Mr. Boyd's heirs and Defendant ONB Bank and Trust entered into a ten-year mining lease with Dawn Mining and Newmont under the same terms as the 1956 lease. The site leased by Dawn Mining and Newmont was developed into the “Midnite Mine.”

3. Conclusion of Mining...