United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN CHIEF JUDGE
Curtis Temple initiated this action with a verified complaint
against only defendant Cleve Her Many Horses, the
Superintendent of the Bureau of Indian Affairs
("BIA") Pine Ridge Agency at Pine Ridge, South
Dakota. (Docket 55). The original verified complaint
consisted of three claims for relief asserting various
actions of Mr. Her Many Horses and tribal actors were
unlawful and wrongfully deprived him of access to grazing
permits for range units 169, 501, 505 and P514. Id.
at pp. 2-10. The original complaint also claimed Mr. Her Many
Horses unlawfully impounded plaintiff's cattle grazing on
some of those range units in August 2015. Id.
filed a motion for a temporary restraining order
("TRO") preventing Mr. Her Many Horses from
following the standard processing of plaintiff's cattle
after impoundment under the applicable BIA regulations.
Id. at pp. 1-10, 44. Mr. Her Many Horses submitted a
motion to dismiss the original complaint based on Rules
12(b)(1) and 12(b)(6) of the Federal Rules of Civil
Procedure. Id. at pp. 10-11. On February 19, 2016,
the court entered an order on plaintiff's TRO motion and
Mr. Her Many Horses' motion to dismiss. See generally
id. at pp. 1-45; see also Temple v. Her Many
Horses, 163 F.Supp.3d 602 (D.S.D. 2016). The court
incorporates the entirety of that order here and discusses
specific sections where necessary.
the motion to dismiss first, the court divided
plaintiff's claims into three categories: (1)
pre-impoundment, (2) BIA assessment and damage calculations
and (3) impoundment. Id. at pp. 14-27. The court
dismissed plaintiff's pre-impoundment claims based on the
doctrine of tribal court exhaustion. Id. at pp.
14-15, 45. The court dismissed plaintiff's BIA assessment
and damage calculation claims because he did not exhaust his
administrative remedies. Id. at pp. 15-16, 45
("Mr. Temple's claims challenging the BIA's
assessment of penalties and its cost and damage calculations
are not ripe for judicial review as he has not exhausted his
administrative remedies."). But the court refused to
dismiss plaintiff's claims on the August 2015 impoundment
of his cattle, including an alleged due process violation and
his challenge to applicable federal regulations. Id.
at pp. 15-27, 45. The court denied the TRO motion.
Id. at pp. 27-45. Following the February 2016 order,
the court entered a scheduling order and the parties began
conducting discovery. (Docket 70).
filed a second motion for a TRO. (Docket 79). The motion
related to a June 2016 impoundment of plaintiff's cattle
grazing on some of the range units listed in his original
verified complaint and sought to prohibit the sale of his
impounded cattle. Id. After holding a hearing, the
court denied the second TRO motion as moot because no sealed
bids were received by the BIA by the deadline set in the
public notice. (Docket 91). At the hearing, the court stated
the second TRO motion and related filings expanded the scope
of the case, so the court ordered plaintiff to submit an
amended complaint. Id.
submitted a verified amended complaint. (Docket 89). The
amended complaint adds three defendants: Lawrence Roberts,
the BIA Assistant Secretary of Indian Affairs; Tim LaPointe,
the BIA Northern Plains Regional Director; and Lionel Weston,
who works at the Branch of Realty for the BIA's Pine
Ridge Agency. Id. The amended complaint includes 18
causes of action. Id. Defendants filed motions for
striking or dismissal of claims, partial summary judgment and
to substitute the BIA for the individually named defendants.
(Dockets 94 & 95). An answer to the amended complaint was
also filed. (Docket 98).
the motions were pending, plaintiff was indicted in the
District of South Dakota for destruction of government
property in violation of 18 U.S.C. § 1361 by
"willfully injur[ing] and commit[ting] a depredation
against . . . Red Shirt Table Range Units 169 and P-501, by
overgrazing and overstocking" the land. (Docket 130).
Upon plaintiff's request, the court stayed this civil
case until his criminal case was resolved. Id. The
criminal case was dismissed and the court held a status
conference to determine the posture of this case. (Docket
142). During the status conference, the parties indicated
defendants' pending motions were ripe for consideration.
The court entered an order lifting the stay and directing the
parties to file a joint proposed scheduling order for
discovery and motions. (Docket 143).
parties do not agree on a schedule for the case. Defendants
seek the following schedule: September 28, 2018, as the
conclusion of discovery; October 31, 2018, for the motions
deadline; and a court trial at the court's convenience
after December 3, 2018. (Docket 144 at p. 3). Plaintiff
proposes discovery should conclude by July 1, 2019, with
trial to commence during fall 2019. (Docket 145 at p. 1).
Plaintiff requests this schedule because he has pending cases
in the Oglala Sioux Tribal Court, and he believes their
results will impact this case. Id. Defendants resist
plaintiff's proposal, arguing delaying the case further
is improper because plaintiff "continually uses this
litigation as an excuse for why he does not have to move his
cattle, does not have to vacate expired Range Units, or
otherwise does not have to follow [BIA's] rules and
regulations." (Dockets 144 at p. 2 & 146).
Motion to strike or dismiss
argue the amended complaint "realleges a number of
issues that the Court previously dismissed because the
doctrine of tribal exhaustion applied or because the claims
were not yet ripe for review when [plaintiff] did not exhaust
his administrative remedies." (Docket 96 at p. 3). In
defendants' view, those "issues should be
stricken" under Rule 12(f) of the Federal Rules of Civil
Procedure or "dismissed again based on the law of the
case doctrine or for the previous reasons stated by the
Court." Id. In response, plaintiff asserts
"just because a court has dismissed certain claims does
not mean that the claims are required to be deleted or
stricken from the complaint." (Docket 106 at p. 2).
Plaintiff argues "[n]o final decision has been made by
the Court on [the dismissed] claims." Id. He
believes "[i]t is necessary to re-allege in any amended
complaint the same claims made in the initial complaint in
order to avoid any subsequent claim by the government that
those claims have been abandoned and to preserve any appeal
rights that exists with regard to the dismissed claims."
Id. at p. 3.
The verified amended complaint
verified original complaint targeted one defendant and
advanced three causes of action. (Docket 1). His verified
amended complaint takes aim at four defendants and includes
18 causes of action. (Docket 89). Aside from a few new
paragraphs and minor changes, the first 10 pages (paragraphs
one through 44) of the amended complaint are identical to the
original complaint. (Dockets 1 at pp. 1-9 & 89 at pp.
1-10). The new factual allegations in the amended complaint