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Curtis Temple v. Roberts

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

September 30, 2019

CURTIS TEMPLE, Plaintiff,
v.
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; JOHN LONG, Acting 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.

          ORDER

          JEFFREY L. VIKEN, CHIEF JUDGE

         INTRODUCTION

         Plaintiff Curtis Temple initiated this action in response to federal officials impounding his livestock in 2015 and 2016. After three years of litigation, the court ordered plaintiff to file a second amended complaint. (Docket 147). Now pending before the court is defendants' motion to dismiss portions of the second amended complaint. (Docket 153). Defendants also ask the court to dismiss the complaint against them and substitute the agency or the United States as defendant. (Docket 154). Plaintiff opposes both motions. (Docket 159). The court grants defendants' motion to dismiss in part and denies it in part. The court denies defendants' motion to substitute parties.

         I. Facts

         The court summarized the facts of this case in a previous order. (Docket 55 at pp. 2-10).[1] The Oglala Sioux Tribal Court recently entered an order making extensive factual findings in plaintiff's related tribal cases.[2] (Docket 180-1 at pp. 2-13). The court will refer to these facts and others as necessary in this order, but declines to make new factual findings.

         II. Legal Standards

         Under Federal Rule of Civil Procedure 12(b)(1), a defendant has the right to challenge the “lack of subject-matter jurisdiction[.]” Fed.R.Civ.P. 12(b)(1). While considering a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, the court must “accept all factual allegations in the pleadings as true and view them in the light most favorable to the nonmoving party.” Great Rivers Habitat All. v. Fed. Emergency Mgmt. Agency, 615 F.3d 985, 988 (8th Cir. 2010). The court “has authority to consider matters outside the pleadings when subject matter jurisdiction is challenged under Rule 12(b)(1).” Harris v. P.A.M. Transp., Inc., 339 F.3d 635, 637 n.4 (8th Cir. 2003) (internal quotation omitted). “The burden of proving federal court jurisdiction is on the party seeking to invoke federal jurisdiction.” Mitchael v. Colvin, 809 F.3d 1050, 1053 (8th Cir. 2016) (citing Great Rivers, 615 F.3d at 988).

         III. Motion to Dismiss

         Defendants ask the court to dismiss portions of plaintiff's second amended complaint on two grounds. First, they assert plaintiff failed to exhaust his administrative remedies regarding some of his claims. (Docket 155 at pp. 4-15). Second, they argue some of plaintiff's claims should be stricken because they contravene the court's prior orders dismissing pre-impoundment and damage calculation claims. Id. at pp. 17-19. In response to the administrative exhaustion argument, plaintiff asserts he has two pending appeals before the Interior Board of Indian Appeals (“IBIA”) related to his federal claims and that the exhaustion requirement does not apply. (Docket 159 at pp. 2-7). Plaintiff also argues his second amended complaint does not violate the court's prior orders outlining the scope of this litigation. Id. at pp. 7-9.

         At the outset, the court notes the parties do not agree on which Federal Rule of Civil Procedure governs this motion. Defendants characterize their motion as one seeking to dismiss for lack of subject matter jurisdiction, which falls under Rule 12(b)(1). (Docket 115 at p. 3). But they also cite the Rule 12(b)(6) standard in case “the court views the motion to dismiss” under that Rule. Id. at p. 4. Plaintiff cites only the Rule 12(b)(6) standard. (Docket 159 at pp. 1-2).

         Rule 12(b)(1) governs this motion because defendants allege the court lacks subject matter jurisdiction over plaintiff's unexhausted claims. Plaintiff's claims against defendants-who are all agents of the United States-may proceed only if the United States has waived its sovereign immunity. Great Rivers, 615 F.3d at 988. The court previously held plaintiff's claims could proceed under the Administrative Procedures Act (“APA”). (Docket 55 at pp. 16-27). The APA requires exhaustion “only when expressly required by statute or when an agency rule requires appeal before review and the administrative action is made inoperative pending that review.” Darby v. Cisneros, 509 U.S. 137, 154 (1993). Department of Interior (“Interior”) and Bureau of Indian Affairs (“BIA”) regulations state that “[n]o decision of a[] . . . BIA official that at the time of its rendition is subject to appeal to the [IBIA] will be considered final so as to constitute agency action subject to judicial review under” the APA. 43 C.F.R. § 4.314; see also 25 C.F.R. § 2.6 (“No decision, which at the time of its rendition is subject to appeal . . . shall be considered final[.]”). Because Interior and BIA rules require exhaustion, the court concludes exhaustion is a prerequisite to proceeding under the APA's waiver of sovereign immunity. See Estate of Sauser v. United States, 171 F.Supp.3d 947, 954 (D.S.D. 2016) (reaching same conclusion); Crow Creek Sioux Tribe v. Bureau of Indians Affairs, 463 F.Supp.2d 964, 968 (D.S.D. 2006) (same). Whether plaintiff exhausted his administrative remedies is a jurisdictional inquiry properly evaluated under Rule 12(b)(1).

         A. Failure to exhaust administrative remedies

         There is significant confusion in the parties' briefing about which claims are subject to exhaustion, which claims are currently on appeal to the IBIA, and how these factors affect the court's jurisdiction. Some of this confusion can be traced to the court's order granting in part and denying in part defendants' first motion to dismiss, which exempted some of plaintiff's claims related to the impoundment of his livestock from the administrative exhaustion requirement.[3](Docket 55 at pp. 16-27). Plaintiff nevertheless proceeded to administratively appeal the impoundment claims the court found to be exempt from exhaustion. The court determines it is appropriate to stay plaintiff's impoundment and impoundment-related claims pending resolution of the administrative appeal process. However, the court concludes dismissing plaintiff's public sale and land survey claims for lack of exhaustion is warranted.

         1. Impoundment claims

         The court previously held plaintiff's “Fifth Amendment due process claims relating to the impoundment of his cattle” and his “APA claim stemming from the impoundment” were exempt from the exhaustion requirement. Id. at pp. 23, 26. This order, filed on February 19, 2016, only addressed the 2015 impoundment. The 2016 impoundment did not occur until June 21, 2016. (Docket 152 at ¶ 37). The court reasoned that impounding the livestock was a final agency action and that the nature of defendants' proposed actions-selling or slaughtering the cattle-weighed against requiring exhaustion, as defendants' “ability to correct [their] mistake is necessarily limited[.]” (Docket 55 at pp. 24-26).

         Plaintiff is proceeding with administrative review of the impoundment decisions. He asserts he is currently appealing the 2015 and 2016 impoundments. (Dockets 152 at ¶¶ 24 & 33 & 159 at pp. 5-7). Plaintiff did not provide the court with any information about the status of his IBIA appeals. He states only that the appeals are “pending and ongoing.”[4] (Docket 159 at p. 3).

         Considering the changed factual circumstances of this case and plaintiff's choice to proceed with the administrative appeal process, the court finds it is appropriate to stay consideration of the impoundment claims pending resolution of the IBIA appeals. The court's February 19, 2016, order exempting plaintiff's impoundment claims from the exhaustion requirement was based at least in part on the gravity of the harm that would be inflicted on plaintiff if defendants sold or slaughtered his cattle. (Docket 55 at pp. 24-26). At that point, the court anticipated resolving plaintiff's claims prior to the sale or slaughter of his livestock. That plan did not come to pass. (Docket 147 at pp. 2-4) (explaining procedural delays). Since the court's previous order, the BIA sold or slaughtered the cattle impounded in 2015 and plaintiff redeemed the cattle impounded in 2016.[5] (Dockets 118-1 at p. 2 & 118-2 at pp. 2-3). The court's concern about the harm to plaintiff stemming from the BIA's prolonged impoundment of his livestock is now moot.

         In addition, plaintiff's choice to administratively appeal the 2015 and 2016 impoundments weighs in favor of granting a stay to allow the appeal process to conclude.

The purpose of exhaustion is to prevent “premature interference with agency processes, so that the agency may function efficiently and so that it may have an opportunity to correct its own errors, to afford the parties and the court the benefit of its experience, and to complete a record which is adequate for judicial review.”

Ace Property & Cas. Ins. Co. v. Federal Crop Ins. Co., 440 F.3d 992, 1001 (8th Cir. 2006) (quoting Weinberger v. Salfi, 422 U.S. 749, 765 (1975)). The administrative record being developed before the IBIA will undoubtedly prove useful in resolving plaintiff's impoundment claims, should the appeals be decided adversely to plaintiff. And, of course, it is entirely possible the IBIA will grant plaintiff the relief he seeks, obviating this action. The court finds the reasoning behind the exhaustion requirement applies to this case.

         However, the court does not agree with the government that dismissal of the impoundment claims is appropriate in this situation. Plaintiff has not failed to exhaust his administrative remedies-he has simply not yet finished exhausting them. The IBIA is the administrative tribunal of last resort with regard to claims against BIA action. 43 C.F.R. § 4.314. Plaintiff appealed the impoundments to the IBIA in 2016 and the appeals may be resolved in the near future.[6] Under these circumstances, it would be a waste of judicial resources to dismiss plaintiff's impoundment claims as unexhausted, only to force plaintiff to refile them if the IBIA rejects his appeals. It would also be unjust to dismiss plaintiff's impoundment claims for lack of exhaustion when the court refused to require him to exhaust his administrative remedies at the beginning of this litigation.

         Accordingly, the court stays resolution of plaintiff's impoundment claims until the IBIA resolves his appeals.[7] The parties may move for summary judgment after the appeals are resolved.[8] At the summary judgment stage, the parties shall file the IBIA's decisions and the administrative record it relied on in resolving plaintiff's appeals. This holding applies to the first through seventh and twelfth claims of plaintiff's second amended complaint. (Docket 152 at ¶¶ 37-43, 48-51).

         2. Other impoundment-related claims

         Defendants claim plaintiff failed to exhaust his administrative remedies with regard to three distinct agency actions for each impoundment: the impoundment itself, the trespass finding, and the assessment of costs, damages and penalties. (Docket 155 at pp. 9-15). In response, plaintiff argues he was not required to separately appeal the BIA's trespass findings and monetary assessment. (Docket 159 at pp. 6-7). Plaintiff asserts only the IBIA can determine whether “certain claims have . . . been exhausted.” Id. at p. 3. The court will not dismiss plaintiff's impoundment claims. See supra Section III.A.1.

         Turning to plaintiff's challenge to the trespass findings, the court concludes his claims are inextricably bound with his impoundment appeal under BIA regulations and IBIA precedent. BIA regulations state that a trespass finding may not be administratively appealed. 25 C.F.R. § 166.803(c). In interpreting this regulation, the IBIA concluded “it has jurisdiction to review the finding of trespass and actions taken as a result of that finding, but does not have jurisdiction to review the actual trespass notice itself.” Miller v. Rocky Mountain Reg'l. Dir., 39 IBIA 57, 60 (2003). The IBIA further noted that “a restriction on review of the finding of trespass or of actions based on that finding”-which appears to be the position defendants assert-would not be “either logical or in accordance with due process.” Id. at 59.

         Here, plaintiff is appealing actions “taken as a result” of a trespass finding-the 2015 and 2016 impoundment of his livestock. Id. at 60. Plaintiff is therefore also appealing the trespass notices and the IBIA has jurisdiction to review those claims. As with his impoundment claims, plaintiff did not fail to exhaust his trespass claims. The court will likewise stay consideration of plaintiff's trespass claims until the IBIA resolves his appeals. This ruling applies to the first, second, seventh and twelfth claims in plaintiff's second amended complaint. (Docket 152 at ¶¶ 37, 38, 43, 48-51).

         Whether plaintiff exhausted his administrative remedies as to the BIA's assessment of costs, damages and penalties is a more difficult question. The Regional Director of the BIA's Great Plains Regional Office rejected plaintiff's attempt to appeal the monetary assessments as unripe on March 14, 2016, for the 2015 impoundment and on July 18, 2016, for the 2016 impoundment. (Dockets 100-1 at p. 2 & 100-3 at p. 1). The Regional Director informed plaintiff the appropriate time to appeal the assessments would be after the BIA issued a “final assessment and calculation of costs, penalties, and damages immediately following the time of redemption/public sale[.]” (Docket 100-1 at p. 2). Plaintiff appealed the Regional Director's decisions. (Dockets 100-2 & 100-4).

         Plaintiff filed his notices of appeal on April 11, 2016, as to the 2015 impoundment and on August 15, 2016, as to the 2016 impoundment. (Dockets 100-2 & 100-4). Both notices of appeal indicated an intent to challenge the BIA's “[e]rroneous assessment and imposition of trespass damages” and asked for “dismissal of the trespass charges and damages and penalties sought[.]” (Dockets 100-2 at p. 2 & 100-4 at p. 2).

         The BIA issued its final assessments on September 28, 2016, for the 2015 impoundment and on January 3, 2017, for the 2016 impoundment. (Dockets 118-1 & 118-2). Plaintiff apparently did not appeal these final assessments. Plaintiff instead argues he was not required to appeal the final assessments because he appealed the Regional Director's dismissal of his assessment claim as unripe. (Docket 159 at p. 7). He asserts the issue is already before the IBIA and “another appeal was not required to be taken.” Id.

         Defendants correctly note the BIA issued its final monetary assessments to plaintiff regarding the 2015 and 2016 impoundments after he appealed those impoundments to the IBIA. (Docket 168 at p. 8). But they do not, in either their briefing or the administrative record presently before the court, cite any persuasive authority for the proposition that monetary assessments must be appealed only after they are “finalized, ” however that may be defined by the BIA.[9]No party pointed the court to an IBIA decision determining if a party may request its review of monetary penalties before the BIA issues a final assessment. It appears the IBIA will have the ability to answer this question if it chooses. See 43 C.F.R. § 4.318 (limiting the IBIA's review “to those issues that were . . . before the BIA official on review.”); Dockets 100-1 at p. 2 & 100-3 at p. 1 (Regional Director discussing ripeness of plaintiff's challenges to monetary assessments). Given that plaintiff has evidently placed this question before the IBIA, the court finds it wise to wait for that tribunal to answer it before resolving the validity of the assessments.

         The court cannot conclude plaintiff failed to exhaust his claims relating to the BIA's assessment of costs, damages and penalties for the 2015 and 2016 impoundments. These claims may be before the IBIA. The court will stay consideration of these claims until the IBIA resolves plaintiff's appeals. Should the IBIA refuse to consider plaintiff's assessment claims, the parties may wish to address the impact of that decision on the court's jurisdiction over those claims. This holding applies to the second, fifth, sixth, ninth and twelfth claims in plaintiff's second amended complaint. (Docket 152 at ¶¶ 38, 41, 42, 45, 48-51).

         3. ...


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