White Mountain Apache Tribe v. Hodel

• Decision Date: 24 February 1988
• Docket Number: No. 87-1504,87-1504
• Citation: 840 F.2d 675
• Parties: WHITE MOUNTAIN APACHE TRIBE, Plaintiff-Appellant, v. Donald P. HODEL, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 675

840 F.2d 675

WHITE MOUNTAIN APACHE TRIBE, Plaintiff-Appellant, v. Donald P. HODEL, et al., Defendants-Appellees.

No. 87-1504.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 11, 1988.

Decided Feb. 24, 1988.

William H. Veeder, Washington, D.C., for plaintiff-appellant.

Martin W. Matzen, Dept. of Justice, Washington, D.C., for defendants-appellees.

Appeal from the United States District Court for the District of Arizona.

Before ALDISERT, ^* WALLACE and SCHROEDER, Circuit Judges.

SCHROEDER, Circuit Judge:

This appeal is part of the White Mountain Apache Tribe's continuing efforts to litigate in Federal District Court its claims of Department of Interior mismanagement. The Tribe claims allegedly poor performance on the part of the government as trustee for the Tribe's natural resources on its reservation in Arizona. The district court dismissed without prejudice the aspect of the litigation now before us because of the Tribe's failure to exhaust administrative remedies within the Department of the Interior.

The Tribe originally filed this action in 1983. In an earlier appeal, we considered the district court's dismissal of the Tribe's claim for federal adjudication of water rights involving the Salt River, which has its headwaters within the reservation. White Mountain Apache Tribe v. Hodel, 784 F.2d 921 (9th Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 644, 93 L.Ed.2d 700 (1986). There we held that the water rights claim was properly dismissed because of a pending comprehensive water allocation proceeding in Arizona state court. We admonished the Tribe for persistent and counterproductive resistance to state court jurisdiction. We urged the Tribe to make its objection to the government's course of conduct known in the state court's proceedings. White Mountain Apache Tribe, 784 F.2d at 924. We pointed out that were the Tribe to succeed in its efforts to prevent the government from presenting any of the Tribe's water claims in the state court, the Tribe might well lose all of its water. Id.

This appeal involves a claim which we acknowledged was not before us in the earlier one. White Mountain Apache Tribe, 784 F.2d at 923. Before us now is a claim of mismanagement of resources. We must again conclude that the Tribe is attempting to proceed in the wrong forum.

The present claim is that the Secretary of the Interior has fraudulently mismanaged the Tribe's grazing land and timber in order to divert Salt River water from the reservation to non-Indian water users. The district court dismissed the claim without prejudice for failure to exhaust administrative remedies. The court based its holding upon 5 U.S.C. Sec. 704, which provides for judicial review of final agency actions. That section means that when a statute or agency rule dictates that exhaustion of administrative remedies is required, the federal courts may not assert jurisdiction to review agency action until the administrative appeals are complete. See Montgomery v. Rumsfeld, 572 F.2d 250, 253 n. 3 (9th Cir.1978).

The Tribe's complaints concern a series of management decisions within the Bureau of Indian Affairs and the Department of the Interior. BIA regulations require the exhaustion of administrative remedies. 25 C.F.R. Sec. 2.3(b):

In order to insure the exhaustion of administrative remedies before resort to court action, no decision which at the time of its rendition is subject to appeal to a superior authority in the Department shall be considered final so as to be agency action subject to judicial review under 5 U.S.C. Sec. 704, unless when an appeal is filed, the officer to whom the appeal is made shall rule that the decision appealed from shall be made immediately effective.

There is a series of agency procedures mandated for exhaustion of administrative appeals; a decision must first be appealed to the BIA Area Director, next to the Commissioner of Indian Affairs and finally to the Interior Board of Indian Appeals. 25 C.F.R. Sec. 2.3(a). See 25 C.F.R. Sec. 2.10; 43 C.F.R. Sec. 4.332.

The Tribe has admittedly not pursued any appeals of the management decisions which it seeks to challenge in district court. It protests that because the agency is proceeding "fraudulently" it can obtain no relief within the agency. The contention, however, is but a bald assertion which the Tribe seeks to litigate ab initio in district court. Were we to permit the Tribe to do so, we would be in flat contravention of the principles of exhaustion of administrative remedies.

Those principles require parties to pursue all administrative remedies prior to judicial review in order to allow agencies to develop a complete factual record and to apply their expertise and discretion. B. Mezines, J. Stein & J. Gruff, 5 Administrative Law Sec. 49.01, pg. 49-3 (1987). In addition, the doctrine insures that a court will have before it a factual record to review, not merely an administrative decision to contradict. Id. at 49-6. These principles are well known in Indian law. See National Farmers Union Insurance Companies v. Crow Tribe of Indians, 471 U.S. 845, 856, 105 S.Ct. 2447, 2454, 85...