United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN, CHIEF JUDGE
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.
court summarized the facts of this case in a previous order.
(Docket 55 at pp. 2-10). The Oglala Sioux Tribal Court recently
entered an order making extensive factual findings in
plaintiff's related tribal cases. (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.
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).
Motion to Dismiss
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.
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).
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).
Failure to exhaust administrative remedies
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.(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
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).
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.” (Docket 159 at p. 3).
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. (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.
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.
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. 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.
the court stays resolution of plaintiff's impoundment
claims until the IBIA resolves his appeals. The parties may
move for summary judgment after the appeals are
resolved. 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).
Other impoundment-related claims
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.
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.
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).
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).
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).
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.”
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.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
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).