United States District Court, D. South Dakota, Southern Division
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS AND STAYING CASE
LAWRENCE L. PIERSOL, District Judge.
Pending before the Court is Plaintiff AT&T Corp.'s (AT&T) action for declaratory judgment against Defendants Oglala Sioux Tribe Utility Commission (OSTUC), OSTUC's commissioners, and Chief Judge of the Oglala Sioux Tribal Court, Mary Wynne (Collectively, "Defendants" or the "Tribe"). Defendants have moved to dismiss for a lack of subject matter jurisdiction. Subsequent to the Defendants moving to dismiss for lack of subject matter jurisdiction, the Plaintiff moved to amend the Complaint. The Amended Complaint added Count 1 which is again requesting the declaratory and injunctive relief but this time with respect to the Final Utility Order entered by the Oglala Sioux Tribe Utility Commission. The Amended Complaint also adds additional facts providing more detail than was alleged in the initial Complaint. Defendants have not separately responded to the Amended Complaint but the Defendants' initial Motion to Dismiss for lack of subject matter jurisdiction applies to both Count 1 and Count 2 of the Amended Complaint in that both Counts request declaratory and injunctive relief against the Defendants. Defendants have not filed a separate motion to dismiss regarding the new count, which is Count 1 in the Amended Complaint but Defendants did object to the new count in the Amended Complaint in Defendants' Opposition to Plaintiff's Motion to Amend Complaint. So that this matter may move ahead to ultimate resolution, the Court is ruling on both Count 1 and 2 of the First Amended Complaint. For the following reasons, the Motion will be granted in part and denied in part. In addition, the federal action will be stayed pending AT&T exhausting its available tribal remedies.
AT&T is a telecommunications provider incorporated in New York with its principal place of business in New Jersey. AT&T is not a member of the Oglala Sioux Tribe. In its capacity as a telecommunications service, AT&T acts as a long distance carrier, also referred to as an interexchange carrier (IXC).
The OSTUC was formally established in 2013 as a subdivision of the Oglala Sioux Tribe. The OSTUC is responsible for the exercise of tribal regulatory authority over all utility systems on the Pine Ridge Indian Reservation. Defendants Joe Red Cloud, Ivan Bettelyoun, David "Terry" Mills, and Arlene Catches The Enemy are commissioners of the OSTUC and are named as defendants in their official capacities. Defendant Mary Wynne is the Chief Judge of the Oglala Sioux Tribal Court and is also named as a defendant in her official capacity.
As an IXC, AT&T delivers long distance calls from one local area to another. When a long distance customer places an interstate call, the customer's long distance carrier generally transports the call to the local telephone company, referred to as a local exchange carrier (LEC). The LEC then carries the call the remaining distance to the called party. The LEC then bills the interstate "access charges" to the IXC for completing the call on the LEC's network. In order for these access charges to be valid, a federal tariff must be filed by the LEC with the Federal Communications Commission (FCC).
Relevant to this dispute is an Oglala Sioux Reservation LEC, Native American Telecom-Pine Ridge (NAT-PR), which has been providing telephone and broadband services on the Pine Ridge reservation since 2009. Doc. 1-1 at 4. As a result of NAT-PR's services on the Reservation, it has billed AT&T access charges under NAT-PR's federal tariff with the FCC. AT&T has refused to pay the charges and filed an informal complaint with the FCC on August 21, 2014. In its informal complaint, AT&T alleges that NAT-PR's access charges are "inconsistent with federal law, that NAT-PR has not provided services consistent with its own federal tariff, and that NAT[-PR]'s charges are unjust and unreasonable in violation of federal law." First Amended Complaint at 5. The FCC action is currently pending.
On September 9, 2014, the OSTUC adopted an Order U-1-2014, creating "new requirements governing the operation of Utility providers on the Pine Ridge reservation." See Doc. 1-1 at 2. These new requirements included: a registration requirement for all utilities; an annual reporting requirement and payment of utility fee; a process for handling consumer complaints; guidance for imposing taxes, fees, and surcharges on consumers; and initiation and termination of service requirements. All utilities, which includes AT&T, "must comply with [the] applicable requirements, ..., or be subject to penalties by [the OSTUC] consistent with the Tribe Utilities Code." Id.
On September 24, 2014, the OSTUC, on its own motion, issued a Final Order (the "Order") that "addresses  an issue of importance to the administration and application of rules and orders in a non-discriminatory manner on the Pine Ridge reservation." Id. at 1. The Order was the result of an August 20, 2014 inquiry by the OSTUC into the question of "whether any carrier serving Pine Ridge reservation has been subject to unreasonable discrimination." Id. While the Order purports to apply to utilities such as AT&T generally, it centers on the dispute between AT&T and NAT-PR. In the Order, the OSTUC found that NAT-PR established lawful tariffs governing IXC traffic and that the tariffs are consistent with FCC regulations. Ultimately, the OSTUC found that "[i]t is unlawful for these carriers to unilaterally withhold payment for services provided by NAT-PR while continuing to enjoy the benefits of such services." Id. at 7. The Order concluded by detailing the process through which services such as AT&T may bring future challenges to the OSTUC.
On October 23, 2014, the OSTUC issued a "notice of liability" purporting to impose a fine on utility providers that had not registered with the OSTUC in the amount of $1, 000 per day. Doc. 29-2 at 1. This notice named ten utilities, including AT&T. First Amended Complaint at 3. Thereafter, on December 19, 2014, the OSTUC filed a complaint against AT&T and eight other defendants in tribal court. See Doc. 29-3 at 1. In its complaint, the OSTUC asked the tribal court for an "Order enforcing the Notice of Liability and the fines imposed on the Defendant utility providers." Id.
"A federal court must have jurisdiction over a matter before it grants  relief" Sprint Communications Co. v. Wynne, No. 4:15-CV-04051-KES, 2015 WL 4644983, at *2 (D.S.D. Aug. 4, 2015) (citing Bruce H. Lien Co. v. Three Affiliated Tribes, 93 F.3d 1412, 1422 (8th Cir. 1996)). "Whether a trib[e]  has adjudicative authority over nonmembers is a federal question.'" Id. (quoting Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316, 324 (2008)). Therefore, this Court has jurisdiction over AT&T's claim for declaratory judgment.
Declaratory judgment provides "means by which rights and obligations may be adjudicated in cases involving an actual controversy that has not reached the stage at which either party may seek a coercive remedy and in cases in which a party who could sue for coercive relief has not yet done so." § 2751 Purpose of Declaratory Judgments, 10B Fed. Prac. & Proc. Civ. § 2751 (3d ed.). See 28 U.S.C. § 2201. In order to comport with Article III, Section 2 of the Constitution, the Declaratory Judgment Act maybe invoked only in "a case of actual controversy." 28 U.S.C. § 2201. See County of Mille Lacs v. Benjamin, 361 F.3d 460, 463 (8th Cir. 2004) (quoting Carson v. Pierce, 719 F.2d 931, 933 (8th Cir. 1983)) ("The controversy requirement of the Declaratory Judgment Act is synonymous with that of Article III of the Constitution.'"). What constitutes a case of actual controversy for purposes of a declaratory judgment is a question of degree: whether the controversy "is of sufficient immediacy and reality to permit..." granting the remedy. Purpose of Declaratory Judgments, supra, at § 2751. Therefore, whether facts before a court present an actual controversy must be assessed on a case-by-case basis. Id.
In the present case, the OSTUC issued an Order on September 24, 2014 purporting to hold services such as AT&T to the requirements the Tribe Utilities Code. See Doc. 1-1 at 2. According to the Order, doing business on the Reservation means that "all of these carriers, regardless of whether they have their own facilities on the Pine Ridge reservation or use the facilities of another carrier, are subject to the jurisdiction and authority of the Oglala Sioux Tribe and this Commission." Id. Based on the tribal regulations, the Tribe has imposed fines on AT&T and attempts to exercise regulatory authority over it. AT&T has neither remitted the fines nor complied with the tribal regulations. Instead, AT&T insists that the Tribe and the OSTUC have no jurisdiction, generally, to regulate AT&T's conduct. The Court finds these facts support a sufficiently concrete case or controversy. "[T]o satisfy the actual controversy requirement of the Declaratory Judgment Act, there must exist substantial controversy between the parties having adverse legal interests, of sufficient immediacy and reality to warrant issuance of a declaratory judgment.'" Gopher Oil Co. v. Bunker, 84 F.3d 1047, 1050 (8th Cir. 1996) (quoting Caldwell v. Gurley Refining Co., 755 F.2d 645, 649 (8th Cir. 1985)). Here, as noted previously, the Tribe and the OSTUC purport to have jurisdiction over AT&T to hold it to tribal regulations. As part of those regulations, AT&T is to ...