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Temple v. Roberts

United States District Court, D. South Dakota, Western Division

August 29, 2018

LAWRENCE ROBERTS, Assistant Secretary of Indian Affairs, Department of Interior, Bureau of Indian Affairs; TIM LAPOINTE, Northern Plains Regional Director, Department of Interior, Bureau of Indian Affairs; CLEVE HER MANY HORSES, Superintendent, Pine Ridge Agency, Department of Interior, Bureau of Indian Affairs; LIONEL WESTON, Branch of Realty, Pine Ridge Agency, Bureau of Indian Affairs, Department of Interior, Defendants.




         Plaintiff 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.

         Plaintiff 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.

         Addressing 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).

         Plaintiff 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.[1]

         Plaintiff 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).[2]

         While 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).

         The 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).


         I. Motion to strike or dismiss

         Defendants 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.

         A. The verified amended complaint

         Plaintiff's 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 mostly ...

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