United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN, CHIED JUDGE
Before the court is plaintiff Curtis Temple's verified complaint and motion fr a temporary restraining order ("TRO"). (Dockets 1 & 5). Mr. Temple filed an additional affidavit and a memorandum in support of his motion for a TRO. (Dockets 11 & 12). Defendant Cleve Her Many Horses, the Pine Ridge Agency Superintendent, filed a response and affidavit in opposition to Mr. Temple's motion for a TRO. (Dockets 13 & 14). After prov. ding notice to the parties, the court held a hearing on the matter on August 27, 2015. (Docket 9). Attorney Terry Pechota appeared on behalf of plaintiff and Assistant United States Attorney Meghan Roche appeared on behalf of defendant. The August 27 hearing was adjourned due to the parties' ongoing settlement discussions. (Docket 16). The court reconvened the TRO hearing on August 31, 2015, after receiving notification that the parties did not reach a settlement. (Docket 18). Both parties submitted post-hearing briefing. (Dockets 20, 21 & 22). Both parties submitted additional supplements to the record along with corresponding responses. (Dockets 24, 24-1, 24-2, 26, 27, 29, 29-1, 29-2, 29-3, 29-4, 31, 34, 38 & 42).
Mr. Her Many Horses subsequently moved for the dismissal of Mr. Temple's complaint on the basis the court is not vested subject matter jurisdiction. (Dockets 32, 33 & 41). Mr. Temple opposes the government's motion to dismiss. (Docket 37). Mr. Her Many Horses moved for permission to sell the cattle, (Dockets 43, 44 & 45), which Mr. Temple resisted. (Dockets 46 & 47). The court held a hearing on February 18, 2016, to consider Mr. Her Many Horses' motion for permission to sell the cattle as well as allegations of the ongoing trespass of Mr. Temple's cattle.
FINDINGS OF FACT
Mr. Temple is an enrolled member of the Oglala Sioux Tribe and a cattle rancher on the Pine Ridge Indian Reservation. (Docket 1 at p. 2). Mr. Her Many Horses is the Superintendent of the Pine Ridge Agency at Pine Ridge, South Dakota. Id. In his federal complaint, Mr. Temple asserts that various actions of Mr. Her Many Horses and other tribal actors violated tribal law and wrongfully deprived him of access to grazing permits to range units 169, 501, 505 and P514. Id. at 2-9. Mr. Temple's lay tribal advocate, William Bielecki, Sr., testified at the August 31 hearing that Mr. Temple's federal action concerned only range units 501 and 169. Donald "Duke" Buffington was awarded grazing permits for range units 169 and P501 for the five-year period beginning November 1, 2012 and ending October 31, 2017. (Docket 14-4). Mr. Her Many Horses testified that although Mr. Buffington's grazing permits became effective November 1, 2012, they were not signed until March 25, 2013, due to a lag in completing the paperwork. See Docket 14-4 at pp. 1, 4, 5 & 8.
On April 27, 2015, Mr. Her Many Horses sent Mr. Temple a letter by certified mail informing him that following a compliance inspection on April 22, 2015, 36 cows and one bull belonging to Mr. Temple were grazing in trespass on range unit 169. (HE 2 at p. I). Mr. Her Many Horses' letter apprised Mr. Temple:
This letter will serve as your authorization to remove the livestock. You have three (3) days to remove the livestock or show why these livestock are not trespassing [on] this trust property. In the event these livestock are not removed or other arrangements have been made, it will be necessary to assess the penalties as provided [in] 25 C.F.R. § 166.800 et al. [sic], and take such other action as may be necessary, including the impoundments and sale of the unauthorized livestock to prevent continued trespass and to protect Indian Lands.
Mr. Her Many Horses sent Mr. Temple a second letter by certified mail on April 27, 2015, informing him that a compliance inspection was conducted on April 22, 2015, on range unit 501 and approximately 202 cows, 2 bulls and 10 horses were found to be in trespass. Id. at 4. This letter contained the same warning regarding the potential impoundments of trespassing cattle as identified above. Id. at 5.
On May 4, 2015, the acting superintendent sent Mr. Temple another letter by certified mail informing him that a compliance inspection was conducted on May 4, 2015, on range unit 169 and approximately 12 cattle and 4 horses were found to be in trespass. (HE 3 at p. 4). The acting superintendent advised Mr. Temple:
You were given the option to remove your livestock or contact my office to show why these livestock had the right to graze upon the property. You have failed to comply with these instructions.
Your livestock are now in trespass following 166.803 and [you] are liable for the value of products illegally removed plus a penalty of twice the value. Currently, the value of this trespassing is equal to $416.20.
Your livestock are also subject to be impounded following CFR 25 [sic], part 166.808. Through this letter you are notified your livestock will be impounded anytime [sic] after (5) five days from the receipt of this notice if they have not been removed from this property. There will be no further notices.
The acting superintendent sent Mr. Temple a second letter by certified mail on May 5, 2015, informing him that a compliance inspection was conducted on May 4, 2015, on range unit 501 and approximately 161 cows, 1 bull and 10 horses were found to be in trespass. Id. at 1. This letter contained the same warning as the prior May 5, 2015, letter except the value of the trespass was $3, 564.11. Id. at 2.
On June 5, 2015, Mr. Bielecki, on behalf of Mr. Temple, wrote Mr. Her Many Horses saying "[a]s you are well aware of, there [have] been several notices of alleged trespass issued against Mr. Temple respecting range units 169 and 501, as a result of Sandra and Donald 'Duke' Buffington's complaints." (Docket 15-2 at p. 1). Mr. Bielecki explained:
While Mr. Temple will continue to pursue to isolate his cattle onto his personally owned and/or leased lands, we are asking that you extend further patience with us as we further those pursuits. We are asking that you defer any actions against Mr. Temple regarding [the] subject units and trespass pending the outcome of litigation in the Tribal courts.
Id. at 2.
On July 2, 2015, Mr. Her Many Horses, responded to Mr. Bielecki's June 5 letter and indicated the United States Department of the Interior, Bureau of Indian Affairs ("BIA") "intends to proceed with trespassing and impoundments procedures on Range Units 169 and P501 if the livestock belonging to Mr. Curtis Temple are not removed." (Docket 14-3 at p. 1). Mr. Her Many Horses continued "Mr. Temple does not have any right to graze his livestock on Range Unit 169 or Range Unit P501. Mr. Temple has been contacted about the trespassing. Mr. Temple has been notified of our intent to impound his livestock. If Mr. Temple refuses to remove his livestock I will have no alternative but to impound them." Id. at 2.
On August 12, 2015, Mr. Bielecki received an email from BIA land operations officer Lionel Weston with an attached letter dated August 12, 2015, which Mr. Bielecki summarized as stating that "Mr. Temple had three (3) days to remove his cattle before impoundments would begin . . . ." (Docket 22-1 at ¶ 10); see also HE 4 at p. 1.
The BIA impounded Mr. Temple's cattle on August 19, 2015. (HE 4 at p. 1). A veterinarian and a brand inspector were present during the impoundment process. Id. On August 21, 2015, Mr. Her Many Horses informed Mr. Temple by letter that approximately 121 head of Mr. Temple's cattle had been impounded by the BIA. Id. The August 21 letter was hand-delivered to Holly Wilson, also a lay tribal advocate of Mr. Temple. See id. at p. 7; see also Dockets 21 at p. 15 (describing Ms. Wilson as Mr. Temple's lay advocate); 20-1 at ¶ 3 (describing how Ms. Wilson gave Mr. Temple the August 21 letter); 22-1 at ¶ 8 (describing Ms. Wilson's ongoing role in the case). The letter informed Mr. Temple the "livestock will be sold at the Gordon Livestock Auction Market on September 1, 2015[, ] following the regular cattle sale unless redeemed by you prior to the sale." (HE 4 at p. 1). Mr. Temple was instructed how to redeem the livestock prior to the public sale. Id. The BIA calculated Mr. Temple owed $274, 402.46 as a result of the trespass and impoundment. Id. at 2.
The parties informed the court the Gordon Livestock Auction Market refused to sell Mr. Temple's cattle because it did not want to be involved in the pending litigation. On September 3, 2015, the impounded cattle were moved to the Johnson Ranch near Crawford, Nebraska. (Docket 20-1 at ¶ 5). The cattle were tested for Trichomonas foetus, the causative agent of Trichomoniasis ("Trich") as part of Nebraska state import regulations. (Docket 29 at p. 1). Trich is a contagious venereal protozoal disease. Id. One of Mr. Temple's bulls tested positive for Trich. Id.
Dennis Hughes, a Nebraska State Veterinarian and Animal Health Inspector, asserts "[t]he Nebraska Department of Agriculture (NDA) has specific statutory authority to prevent and mitigate introduction of Trichomoniasis into the state." (Docket 29-2 at p. 1). Accordingly, the Nebraska Department of Agriculture issued a five-point protocol outlining the process by which Mr. Temple's cattle could be released from quarantine. (Docket 29-1 at p. 1). Step one of the protocol calls for the slaughter of the Trich-positive bull "as soon as possible." Id. Step five of the protocol opines:
The easiest and quickest solution to this scenario is to ship the rest of the herd back to South Dakota. Unfortunately, the Trichomoniasis diagnosis and amount of time elapsed means that this group is now considered to be of Nebraska origin, and cannot be imported back into South Dakota legally, without an exception from the South Dakota State Veterinarian, Dr. Dustin Oedekoven.
Mr. Temple, BIA officials and the legal representatives met on October 14, 2015, to discuss the protocol and related issues. (Docket 29 at p. 2). On October 19, 2015, Mr. Temple, through Mr. Bielecki's affidavit, informed the court that a person at the Johnson Ranch castrated four bulls being held at the ranch due to the Trich quarantine. (Docket 31-1 at p. 3). Mr. Bielecki asserted one of Mr. Temple's cows had died and others may be missing. Id. at 1-4.
On October 26, 2015, Diane Mann-Klager, a natural resources officer at the BIA, clarified that 114 cattle were corralled in the August 19, 2015, impoundment of Mr. Temple's livestock. (Docket 34-1 at ¶ 3). Thereafter, 10 additional animals entered the corrals while the brand inspector was working and three animals escaped for a total of 121 animals which were shipped to the Gordon Livestock Auction. Id. One cow died along the way, one new calf was born, and the number of impounded bulls remained consistent at three. Id. Five of the impounded animals belong to Tammy Steel and Trey Temple, Mr. Temple's spouse and son, respectively, who received notice of the sale and have not yet sought the return of their cattle. Id. at ¶ 7.
On November 4, 2015, Mr. Bielecki, on behalf of Mr. Temple, and Dr. Mendel Miller, a South Dakota assistant state veterinarian, formalized a memorandum of understanding regarding their discussions about the handling of Mr. Temple's cattle. (Docket 38-2). On February 2, 2016, Dr. Miller developed a protocol the state of South Dakota recommends for the disposition of Mr. Temple's cattle quarantined in Nebraska as well as for those in South Dakota. See Docket 49-8. At least one bull in Mr. Temple's remaining South Dakota herd tested positive for Trich. Id. The BIA requests the court's permission to sell the cattle according to its disposition plan, which calls for the immediate sale of the animals subject to the highest risk of spreading Trich and selling approximately 40 of the cattle for eventual slaughter. See Docket 44 & 44-1.
In matters unrelated to the impounded livestock, the BIA conducted subsequent compliance inspections on range units 169 and 501 on September 9, 2015 and September 16, 2015. See Docket 24. As of September 9, 2015, approximately 87 of Mr. Temple's cows and 1 bull were observed trespassing on portions of range unit 501 in which Mr. Temple did not have an ownership interest. See Docket 24-1 at p. 1. None of Mr. Temple's livestock were observed trespassing on range unit 169. Id. As of September 17, 2015, approximately 81 of Mr. Temple's cows, 4 bulls, 1 steer and 1 horse with a colt were observed trespassing on range unit 501. See Docket 24-2 at p. 1. None of Mr. Temple's livestock were observed trespassing on range unit 169. Id.
On December 4, 2015, approximately 46 cows and one bull were observed trespassing on portions of range unit 501 in which Mr. Temple did not have an ownership interest. (Docket 44-2 at p. 1). On the same date, 26 cows were observed trespassing on portions of range unit 169 in which Mr. Temple did not have an ownership interest. Id.
On February 17, 2016, approximately 21 cows and one bull were observed trespassing on portions of range unit 501 in which Mr. Temple did not have an ownership interest. (HE 22 at p. 1). On the same date, 207 cows were observed trespassing on portions of range unit 169 in which Mr. Temple did not have an ownership interest. Id.
On May 14, 2015, the Oglala Sioux Tribal Court ("Tribal Court") entered an order enjoining all defendants, including the BIA and Mr. Her Many Horses from taking any action related to impounding Mr. Temple's cattle. (Docket 27-1). On August 3, 2015, the Tribal Court dismissed with prejudice any portion of its May 14, 2015, emergency temporary injunction order enjoining any federal actor. Id. at 2. The Tribal Court reasoned that it did "not have jurisdiction over the United States, its agencies, or United States' employees acting in their official capacities like the BIA Superintendent." Id. On August 20, 2015, the Supreme Court of the Oglala Sioux Nation affirmed the Tribal Court's dismissal and determined tribal courts "ha[ve] no jurisdiction over the BIA, which is an arm of the federal government." (Docket 27-2 at p. 1). The Tribal Court's May 14, 2015, temporary injunction order remains in effect against all tribal entities and officials but not the BIA or Mr. Her Many Horses. Id.
MOTION TO DISMISS
The court first considers Mr. Her Many Horses' motion to dismiss. Mr. Her Many Horses moved to dismiss Mr. Temple's complaint based on a lack of subject matter jurisdiction or alternatively for failure to state a claim under Fed.R.Civ.P. 12(b)(1) and 12(b)(6), respectively, depending on how the court interpreted the motion. (Dockets 32 & 33 at p. 1-3). Mr. Her Many Horses' motion is premised on the same arguments raised in responding to Mr. Temple's motion for a TRO where he asserted the court is not vested with the subject matter jurisdiction necessary to adjudicate the complaint. See Docket 32 ("This motion is based upon arguments that have already been raised before this Court related to Plaintiffs Motion for a Preliminary Injunction and related post-hearing briefs."). The court interprets Mr. Her Many Horses' motion to dismiss as having been brought pursuant to Fed.R.Civ.P. 12(b)(1) seeking the dismissal of Mr. Temple's complaint based on a lack of subject matter jurisdiction.
As was made clear in the defendant's motion to dismiss and responses to Mr. Temple's motion for a TRO, Mr. Her Many Horses has mounted a factual attack challenging the court's subject matter jurisdiction to hear Mr. Temple's complaint. "A court deciding a motion under Rule 12(b)(1) must distinguish between a 'facial attack' and a 'factual attack.' " Osborn v. United States, 918 F.2d 724, 729 n.6 (8th Cir. 1990) (citing among other cases Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir.), cert, denied, 449 U.S. 953 (1980)). "A factual attack . . . challenges the existence of subject matter jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings, such as testimony and affidavits, are considered." Menchaca, 613 F.2d at 511 (citing Mortensen v. First Federal Savings & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)) (internal quotation marks omitted).
"In a factual attack, the court considers matters outside the pleadings . . . and the non-moving party does not have the benefit of 12(b)(6) safeguards." Osborn, 918 F.2d at 729 n.6 (8th Cir. 1990) (citations omitted). "Because at issue in a factual 12(b)(1) motion is the trial court's jurisdiction-its very power to hear the case-there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case." Id. at 730 (quoting Mortenson, 549 F.2d at 891). A "district court has authority to consider matters outside the pleadings when subject matter jurisdiction is challenged under Rule 12(b)(1)." Id. at 728 n.4 (citing Land v. Dollar, 330 U.S. 731, 735 n.4 (1947); Satz v. ITT Fin. Corp., 619 F.2d 738, 742 (8th Cir. 1980)). Accordingly, the ...