IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ... · Interior, finding that Interior...

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

MASHPEE WAMPANOAG TRIBE, Plaintiff,

v. DAVID L. BERNHARDT, in his official capacity as Secretary of the Interior, and UNITED STATES DEPARTMENT OF THE INTERIOR, Federal Defendants, v. DAVID LITTLEFIELD, et al., Intervenor- Defendants.

Case No. 1:18-cv-2242-PLF

FEDERAL DEFENDANTS’ MEMORANDUM IN OPPOSITION TO PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION

Case 1:18-cv-02242-PLF Document 50 Filed 04/21/20 of 31

i

Table of Contents

Introduction ................................................................................................................... 1

Statutory Framework .................................................................................................... 3

Factual Background ...................................................................................................... 4

I. Interior’s 2015 decision acquiring land into trust for the Tribe ............. 4

II. Challenge to Interior’s 2015 decision in the United States District Court for the District of Massachusetts and United States Court of Appeals for the First Circuit ................................................................ 5

III. Interior’s 2018 decision finding that the Tribe was not under Federal jurisdiction in 1934 ..................................................................... 7

IV. The Tribe’s challenge to Interior’s 2018 decision in this Court .............. 8

Standard of Review ........................................................................................................ 9

I. Preliminary injunctions ........................................................................... 9

II. Administrative Procedure Act ............................................................... 10

Argument ..................................................................................................................... 11

I. The Court lacks jurisdiction to consider the Tribe’s motion for a preliminary injunction ........................................................................... 11

A .The Court lacks jurisdiction because the Tribe’s remedy was in the First Circuit ............................................................... 11

B. The Court lacks jurisdiction because the Tribe’s motion seeks a different remedy and raises new issues than the Tribe’s complaint. ........................................................................ 12

II. The Tribe is unlikely to succeed on the merits of its claims ................. 15

III. The Tribe has not shown irreparable injury ......................................... 18

IV. Neither the balance of the harms nor the public interest favor an injunction ................................................................................................ 21

Conclusion .................................................................................................................... 24


ii

Table of Authorities Cases

Adair v. England, 193 F. Supp. 2d 196 (D.D.C. 2002) .......................................................................... 13

Alabama v. U.S. Army Corps of Eng’rs, 424 F.3d 1117 (11th Cir. 2005) ................................................................................ 13

Am. Paper Inst., Inc., v. Am. Elec. Power Serv. Corp., 461 U.S. 402 (1983) .................................................................................................. 10

Benoit v. District of Columbia, 2018 WL 5281908 (D.D.C. Oct. 24, 2018) ................................................................ 12

Cal. Ass’n of Private Postsecondary Sch. v. DeVos, 344 F. Supp. 3d 158 (D.D.C. 2018) .................................................................... 18, 20

Carcieri v. Salazar, 555 U.S. 379 (2009) ................................................................................................ 3, 4

Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290 (D.C. Cir. 2006) .................................................................................. 18

Confederated Tribes of the Grand Ronde Cmty. of Or. v. Jewell, 75 F. Supp. 3d 387 (D.C. Cir. 2016) ................................................................... 11, 17

Crawford-Hall v. United States, 394 F. Supp. 3d 1122 (C.D. Cal. 2019) .................................................................... 29

De Beers Consol. Mines v. United States, 325 U.S. 212 (1945) ...................................................................................... 12, 13, 14

Fund for Animals v. Espy, 814 F. Supp. 142, 152 (D.D.C.) ................................................................................ 22

Gas Co. v. Fed. Energy Regulatory Comm’n, 758 F.2d 669 (D.C. Cir. 1985) ............................................................................ 18, 20

Karem v. Trump, 404 F. Supp. 3d 203 (D.D.C. 2019) ............................................................................ 9

Konarski v. Donovan, 763 F. Supp. 2d 128 (D.D.C. 2011) ............................................................................ 9

League of Women Voters of the U.S. v. Newby, 838 F.3d 1 (D.C. Cir. 2016) ...................................................................................... 10


iii

Littlefield v. Mashpee Wampanoag Indian Tribe, 951 F.3d 30 (1st Cir. 2020) .............................................................................. passim

Littlefield v. U.S. Dep’t of the Interior, 199 F. Supp. 3d 391 (D. Mass. 2016) ............................................................... passim

Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209 (2012) .................................................................................................. 20

Mdewakanton Sioux Indians of Minn. v. Zinke, 255 F. Supp. 3d 48 (D.D.C. 2017) ............................................................................ 10

Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) .................................................................................................... 11

Munaf v. Geren, 553 U.S. 674 (2008) .................................................................................................... 9

Muwekma Ohlone Tribe v. Salazar, 813 F. Supp. 2d 170 (D.D.C. 2011) .................................................................... 15, 16

Nken v. Holder, 556 U.S. 418 (2009) .................................................................................................. 21

Norton v. S. Utah Wilderness Alliance, 542 U.S. 55 (2004) .................................................................................................... 15

Pub. Citizen, Inc. v. Fed. Aviation Admin., 988 F.2d 186 (D.C. Cir. 1993) .................................................................................. 16

Sai v. Transp. Sec. Admin., 54 F. Supp. 3d 5 (D.D.C. 2014) .......................................................................... 13, 14

Sherley v. Sebelius, 644 F.3d 388 (D.C. Cir. 2011) .................................................................................... 9

Smith v. Café Asia, 598 F. Supp. 2d 45 (D.D.C. 2009) ............................................................................ 13

Stand Up for Cal. v. U.S. Dep’t of the Interior, 919 F. Supp. 2d 51 (D.D.C. 2013) ............................................................................ 24

Tourus Records, Inc. v. Drug Enforcement Agency, 259 F.3d 731 (D.C. Cir. 2001) .................................................................................. 16

U.S. Postal Serv. v. Gregory, 534 U.S. 1 (2001) ...................................................................................................... 10

Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, 435 U.S. 519 (1978) .................................................................................................. 13


iv

Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008) ...................................................................................... 9, 10, 18, 21

Statutes

5 U.S.C. § 706(2)(A) ........................................................................................... 1, 10, 15

25 U.S.C. § 2206(b)(2)(B) ............................................................................................. 23

25 U.S.C. § 5108 ......................................................................................................... 1, 3

25 U.S.C. § 5110 ............................................................................................................. 4

25 U.S.C. § 5129 ..................................................................................................... 3, 4, 5

Pub. L. No. 116-136, (Mar. 27, 2020) .......................................................................... 19

Regulations

25 C.F.R. § 20.100 ........................................................................................................ 19

25 C.F.R. § 20.201 ........................................................................................................ 19


1

Introduction

In 2015, the Interior Department issued a decision acquiring land in

Mashpee and Taunton, Massachusetts and holding it in trust for the benefit of the

Mashpee Wampanoag Tribe (Tribe) under the Indian Reorganization Act of 1934

(IRA), 25 U.S.C. § 5108. In the 2015 decision, Interior concluded that the Tribe was

eligible for trust acquisition under the IRA’s second definition of “Indian.” But the

United States District Court for the District of Massachusetts ruled against

Interior, finding that Interior lacked statutory authority to acquire land in trust for

the Tribe.

Although litigation continued regarding Interior’s 2015 decision, the District

of Massachusetts remanded the matter to the agency to determine if the Tribe was

“under Federal jurisdiction” in 1934 and thus could still be eligible for trust

acquisition under the IRA. After an extensive examination, in 2018, Interior issued

a decision finding that the evidence did not establish any significant contacts

between the Tribe and United States through treaty, legislation, or Federal

administrative action. In this court, the Tribe challenges Interior’s 2018 decision

under the Administrative Procedure Act (APA), 5 U.S.C. § 706(2)(A). The parties

completed briefing on motions for summary judgment in October, 2019.

On February 27, 2020, the United States Court of Appeals for the First

Circuit affirmed the Massachusetts district court’s holding that Interior’s

acquisition of the Mashpee and Taunton parcels was unlawful. After the First

Circuit issued a mandate in accordance with its judgment, Interior issued a decision


2

instructing the Bureau of Indian Affairs (BIA) to rescind the 2015 decision

acquiring land into trust for the Tribe. See Interior’s March 27, 2020, decision,

attached as Ex. 1.

Now, the Tribe has filed a motion in this case challenging Interior’s

March 27, 2020, decision and seeking a preliminary injunction preventing Interior

from recording transfer of the land out of trust. In order to obtain the extraordinary

relief of a preliminary injunction, the Tribe must establish that this Court has

jurisdiction over its motion and show a combination of a substantial likelihood of

success on the merits of its claims, irreparable injury if the relief is not granted, and

that the public interest favors such an order. The Tribe cannot show that it is

entitled to emergency relief.

Although the Tribe is trying to bootstrap a new request for injunctive relief

into this case, its relief does not lie in this Court. As an initial matter, the Tribe’s

request for relief must be filed in the First Circuit or District of Massachusetts as it

is those courts that held unlawful Interior’s decision to take the contested land into

trust. But even if the Tribe could seek a remedy outside those courts, the Tribe’s

complaint here does not seek any relief regarding the trust status of the Mashpee

and Taunton parcels or include a challenge to Interior’s March 27, 2020, decision.

Thus, the Court does not have jurisdiction to consider the motion for a preliminary

injunction.

Yet additional reasons exist for denying the requested extraordinary

emergency relief:


3

• The Tribe makes no attempt to show that it is likely to succeed on the merits of a challenge to Interior’s March 27, 2020, decision;

• Interior’s 2018 decision was based on a rigorous examination of the Tribe’s submissions and is well-supported by the administrative record;

• The Tribe’s allegations of irreparable injury are based on a

misconception. In actuality, the Tribe can receive Federal funding without the Mashpee and Taunton parcels being kept in trust and reservation status;

• The Tribe relies on speculative harm that is either reparable or does

not stem from Interior’s March 27, 2020 decision;

• The public interest is served by Interior’s decision to act in accordance with the First Circuit’s holding and mandate;

• Interior’s decision provides clarity to the State of Massachusetts and

local governments regarding the status of this land. For all of these reasons, the Tribe’s motion should be denied.

Statutory Framework

Under the Indian Reorganization Act of 1934, the Secretary of the Interior

may take land into trust for “Indians,” 25 U.S.C. § 5108. The IRA defines “Indian”

to include:

[1] all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction, and [2] all persons who are descendants of such members who were, on June 1, 1934, residing within the present boundaries of any Indian reservation, and . . . [3] all other persons of one-half or more Indian blood.

25 U.S.C. § 5129.

The IRA’s first definition of “Indian” was addressed by the Supreme Court in

Carcieri v. Salazar, 555 U.S. 379 (2009), a case that involved a decision of the

Secretary of the Interior to acquire land and hold it in trust for the Narragansett


4

Tribe of Rhode Island. At issue was whether the Narragansett Tribe was a

“recognized Indian tribe now under Federal jurisdiction” within the meaning of

what is now Section 5129. The Secretary had determined that the phrase “‘now

under Federal jurisdiction”’ meant the tribe must be under Federal jurisdiction “at

the time that the land is accepted into trust.” Id. at 382 (emphasis added; citation

omitted). But based primarily on “the ordinary meaning of the word ‘now’” and “the

natural reading of the word with the context of the IRA,” id. at 388, 389, the

Supreme Court held that “the term ‘now under Federal jurisdiction’ in [Section

5129] unambiguously refers to those tribes that were under the federal jurisdiction

of the United States when the IRA was enacted in 1934,” id. at 395. The Supreme

Court did not address the IRA’s second definition of “Indian.”

In addition to authorizing the Secretary to accept land into trust for

“Indians,” the IRA also authorizes the Secretary “to proclaim new Indian

reservations on lands acquired pursuant to any authority conferred by [the] Act, or

to add such lands to existing reservations.” 25 U.S.C. § 5110.

Factual Background

I. Interior’s 2015 decision acquiring land into trust for the Tribe

Shortly after the Tribe’s federal acknowledgment, the Tribe asked Interior to

acquire land in trust for the Tribe’s benefit pursuant to the IRA. AR 52291

(September 18, 2015, Record of Decision, hereinafter Interior’s 2015 decision at 4).

1 The relevant portions of the AR can be found in the joint appendix filed by the parties. ECF No. 39.


5

The property is composed of approximately 170 acres in Mashpee, Massachusetts

and 150 acres near the City of Taunton, Massachusetts. Id.

On September 18, 2015, Interior issued a record of decision to acquire the

Mashpee and Taunton parcels in trust for the Tribe and proclaim such lands to be

the Tribe’s reservation. AR 5223-5362 (Interior’s 2015 decision). Interior

determined that it had statutory authority to acquire the lands in trust under the

IRA’s second definition of “Indian,” which includes “all persons who are descendants

of such members who were, on June 1, 1934, residing within the present boundaries

of any Indian reservation.” 25 U.S.C. § 5129; AR 5304-5326 (Interior’s 2015

decision at 79-101). Subsequently, BIA took the parcels of land into trust for the

Tribe and issued a reservation proclamation. 81 Fed. Reg. 948 (Jan. 8, 2016).

II. Challenge to Interior’s 2015 decision in the United States District Court for the District of Massachusetts and United States Court of Appeals for the First Circuit

In 2016, several residents of the City of Taunton, Massachusetts (together,

Intervenor-Defendants) challenged Interior’s 2015 decision in the United States

District Court for the District of Massachusetts. Littlefield v. U.S. Dep’t of the

Interior, No. C-16-10184 (filed in D. Mass. 2016). Among their claims, Intervenor-

Defendants challenged Interior’s application of the IRA’s second definition of

“Indian.” Littlefield v. U.S. Dep’t of the Interior, 199 F. Supp. 3d 391, 394 (D. Mass.

2016).

The district court ruled against Interior and concluded that the IRA’s second

definition of “Indian” unambiguously incorporates the “now under Federal


6

jurisdiction” requirement from the Act’s first definition of “Indian.” Id. at 399-400.

The district court entered declaratory judgment in Intervenor-Defendants’ favor

and remanded to Interior for further proceedings consistent with its opinion. Id. at

400. Because the district court’s decision suggested that the Tribe was not under

Federal jurisdiction in 1934, an issue Interior’s 2015 decision had expressly declined

to reach, the district court later clarified that Interior could, consistent with its

opinion, evaluate whether the Tribe was under Federal jurisdiction in 1934.

Littlefield, No. C-16-10184, Order of Oct. 12, 2016, ECF No. 121.

Interior and the Tribe each filed notices of appeal from the decision.

Littlefield v. Mashpee Wampanoag Indian Tribe, 951 F.3d 30, 34 (1st Cir. 2020).

Interior, however, later moved for voluntary dismissal of its appeal. Id. On

February 27, 2020, the First Circuit affirmed the district court’s finding that

Interior lacked statutory authority to acquire land in trust for the Tribe. Id. at 33.

The Tribe did not petition for a panel rehearing or a rehearing en banc. On

March 19, 2020, the First Circuit issued a mandate in accordance with its judgment

pursuant to FED. R. APP. P. 41(a). Littlefield, No. C-16-2484 1st Cir. 2016).

Subsequently, on March 27, 2020, the Secretary issued a final agency action

explaining that with the First Circuit’s mandate now issued, Interior must take

steps to rescind the 2015 decision acquiring land into trust for the Tribe. Ex. 1.

The Secretary instructed BIA to transfer the parcels out of trust, revoke the

reservation proclamation, and annul the gaming eligibility determination. Id.


7

III. Interior’s 2018 decision finding that the Tribe was not under Federal jurisdiction in 1934

Between December 2016 and February 2017, the Tribe and Intervenor-

Defendants submitted evidence and arguments on whether the Tribe was under

Federal jurisdiction in 1934. After considering these materials, Interior requested

that the parties provide additional briefing on the effect of Massachusetts’ early

historical exercise of authority over the Tribe for the “under Federal jurisdiction”

analysis. AR 4714-4857. In the latter half of 2017, Interior received supplemental

submissions from the parties, a neighboring Indian tribe, and several towns in

Connecticut.2

After reviewing the submissions made by the Tribe, Intervenor-Defendants,

and the third parties, on September 7, 2018, Interior issued a decision finding that

the Tribe was not under Federal jurisdiction in 1934. AR 5088-5115 (Remand

Decision, hereinafter Interior’s 2018 decision). Interior explained that “the evidence

does not show any significant contacts between the United States and the Tribe

through treaty, legislation, or Federal administrative action.” AR 5107 (Interior’s

2018 decision at 20). In sum, the administrative record included “little indicia of

Federal jurisdiction beyond the general principle of plenary authority, and little if

any evidence demonstrating that the United States took any actions establishing or

reflecting Federal obligations, duties, responsibilities for or authority over the Tribe

in or before 1934.” AR 5115 (Interior’s 2018 decision at 28). Because the Tribe was

2 See AR 8349-8419, AR 9483-9507 AR 9537-9539; AR 7126-7200; AR 9381-9427; AR 9511-9533; AR 9374-9380; AR 5194-5195.


8

not under Federal jurisdiction in 1934, the Tribe does not meet the IRA’s first

definition of “Indian,” nor the Act’s second definition as defined in Littlefield. Id.

IV. The Tribe’s challenge to Interior’s 2018 decision in this Court

The Tribe’s complaint in this case asserts a single cause of action that alleges

that Interior’s 2018 decision finding that the Tribe was not under Federal

jurisdiction in 1934 is arbitrary, capricious, and contrary to law because Interior

failed either to consider all of the relevant evidence or to consider the Tribe’s

evidence as a whole. Compl. ¶¶ 61-66, ECF No. 1. The Tribe seeks a declaration to

that effect and an injunction ordering Interior to issue a new decision based on the

evidence and consistent with law, regulation, and Departmental policy. Id. ¶¶ 67-

68. Federal Defendants moved for summary judgment to be entered in their favor

on the Tribe’s cause of action. ECF No. 31; 37.

On March 30, 2020, the Tribe filed a motion for a temporary restraining order

and a preliminary injunction against Interior to prevent the agency from taking any

steps to alter the status of the Mashpee and Taunton parcels. ECF No. 42. On

March 31, 2020, the Court held a conference with counsel and ordered the parties to

confer and agree upon a briefing schedule. In accordance with the parties’

agreement, on April 6, 2020, the Court ordered that the Tribe’s motion for a

temporary restraining order was held in abeyance provided that Interior refrained

from completing the ministerial tasks necessary to record the transfer of the parcels

out of trust, revoke the reservation proclamation, and annul the gaming eligibility

determination. ECF No. 44. The Court also entered a briefing schedule for the


9

Tribe’s motion for a preliminary injunction and set oral argument on the motion.

Id. Federal Defendants file this response in opposition to the Tribe’s motion for a

preliminary injunction.

Standard of Review

I. Preliminary injunctions

The grant of a preliminary injunction is an “extraordinary and drastic

remedy.” Munaf v. Geren, 553 U.S. 674, 689 (2008) (citation omitted). “As an

extraordinary remedy, courts should grant such relief sparingly.” Konarski v.

Donovan, 763 F. Supp. 2d 128, 133 (D.D.C. 2011). The Tribe is entitled to

preliminary relief only if it demonstrates (1) likelihood of success on the merits, (2)

likelihood of irreparable harm in the absence of an injunction, (3) the balance of

hardships tips in their favor, and (4) an injunction is in the public interest. Winter

v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (citation omitted).

Prior to the Supreme Court’s ruling in Winter, a number of circuits, including

the D.C. Circuit, evaluated the four factors using a “sliding scale” approach—

allowing a strong showing on one of the factors to make up for a weaker showing on

another factor. Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011). As the Tribe

acknowledges, “the D.C. Circuit has ‘suggested, without deciding, that Winter

should be read to abandon the sliding-scale analysis in favor of a more demanding

burden requiring plaintiffs to independently demonstrate both a likelihood of

success on the merits and irreparable harm.’” Tribe’s Mem. of P. & A. in Supp. of

Pl.’s Emergency Mot. (Tribe’s Mot.) at 10, ECF No. 42-1 (quoting Karem v. Trump,


10

404 F. Supp. 3d 203, 209 (D.D.C. 2019)). In any event, it is clear that Winter

rejected the argument that “when a plaintiff demonstrates a strong likelihood of

prevailing on the merits, a preliminary injunction may be entered based only on a

‘possibility’ of irreparable harm.” 555 U.S. at 21.

The Court should not grant preliminary relief unless the Tribe makes “a clear

showing that [the] four factors, taken together, warrant relief.” League of Women

Voters of the United States v. Newby, 838 F.3d 1, 6 (D.C. Cir. 2016) (internal

quotations omitted); Mdewakanton Sioux Indians of Minn. v. Zinke, 255 F. Supp. 3d

48, 51 (D.D.C. 2017) (the party moving for injunctive relief carries the burden of

persuasion).

II. Administrative Procedure Act

The APA directs the Court to uphold an agency’s decision unless it is deemed

to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance

with law.” 5 U.S.C. § 706(2)(A). Although the inquiry must be thorough, the

standard of review is narrow and highly deferential, an agency’s decisions are

entitled to a “presumption of regularity,” and the Court cannot substitute its

judgment for that of the agency decision maker. U.S. Postal Serv. v. Gregory, 534

U.S. 1, 10 (2001). The Court need not find that an agency decision “is the only

reasonable one, or even that it is the result [the court] would have reached.” Am.

Paper Inst., Inc., v. Am. Elec. Power Serv. Corp., 461 U.S. 402, 422 (1983).

The Court must determine whether the agency: (1) relied on factors which

Congress had not intended it to consider; (2) entirely failed to consider an important


11

aspect of the problem; (3) offered an explanation for its decision that runs counter to

the evidence before the agency; or, (4) offered an explanation so implausible that it

could not be ascribed to a difference in view or the product of agency expertise.

Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S.

29, 43 (1983); Confederated Tribes of the Grand Ronde Cmty. of Or. v. Jewell, 75 F.

Supp. 3d 387, 396 (D.C. Cir. 2016).

Argument

I. The Court lacks jurisdiction to consider the Tribe’s motion for a preliminary injunction

A. The Court lacks jurisdiction because the Tribe’s remedy was in

the First Circuit

This Court does not have jurisdiction to award the injunctive relief the Tribe

seeks. To the extent that any such remedy was available to the Tribe, it was in the

First Circuit. The First Circuit ruled against the Tribe, holding that Interior’s 2015

decision lacked authority to grant the Tribe’s land-into-trust application and

acquire the Mashpee and Taunton parcels in trust. Once the First Circuit issued its

mandate, Interior acted to rescind the 2015 decision. Ex. 1. If the Tribe wanted to

keep Interior from following the First Circuit’s mandate, it should have sought

relief from the First Circuit. The Tribe had the ability to petition for a panel

rehearing or a rehearing en banc from the First Circuit, but it did not. See First

Circuit Local Rules 35(b), 40. The Tribe also could have requested that the First

Circuit stay the issuance of the mandate, but it did not. See id. 41(d)(1) (“A party


12

may move to stay the mandate pending the filing of a petition for a writ of certiorari

in the Supreme Court.”).

What the Tribe cannot do is use its challenge in a separate case and on a

separate issue in this Court to seek relief based on the First Circuit’s ruling and

Interior’s decision implementing the First Circuit’s mandate. See De Beers Consol.

Mines v. United States, 325 U.S. 212, 220 (1945) (a preliminary injunction is

inappropriate when it would provide relief that “in no circumstance” could be

provided “in any final injunction that may be entered”); see also Benoit v. District of

Columbia, Civil Action No. 18-114 (RC), 2018 WL 5281908, at *4-*5 (D.D.C. Oct. 24,

2018) (the court lacked jurisdiction over a motion for preliminary injunction based

on new facts not alleged in the complaint). Because the Tribe has not shown that

the Court has jurisdiction over its motion for a preliminary injunction, the motion

should be denied.

B. The Court lacks jurisdiction because the Tribe’s motion seeks a different remedy and raises new issues than the Tribe’s complaint.

The Tribe’s complaint in this case does not seek any relief regarding the trust

status of the Mashpee and Taunton parcels or include a challenge to Interior’s

March 27, 2020, decision. Accordingly, the Tribe has failed to invoke this Court’s

jurisdiction over its motion.

Here, the complaint does not seek any relief regarding the trust status of the

Tribe’s parcels. If the Court concludes that Interior’s 2018 decision was arbitrary or

capricious, the remedy should be an order remanding the decision to Interior to


13

make a new decision regarding whether the Tribe was under Federal jurisdiction in

1934. Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, 435 U.S. 519, 549

(1978). The Tribe would not be entitled to the relief it seeks in the preliminary

injunction motion. Indeed, nothing in the Tribe’s complaint requests relief

regarding the trust status of the parcels. Compl. ¶¶ 67-68 (seeking an injunction

ordering Interior to issue a new decision). In the absence of an operative complaint

requesting such relief,3 this Court cannot and should not grant the Tribe’s motion

for a preliminary injunction. De Beers Consol. Mines, 325 U.S. at 220; Alabama v.

U.S. Army Corps of Eng’rs, 424 F.3d 1117, 1134 (11th Cir. 2005) (“injunctive relief

must relate in some fashion to the relief requested in the complaint”); Schwartz v.

United States Dep’t of Justice, 2007 U.S. Dist. LEXIS 74608 (D.N.J. Oct. 4, 2007)

(“When the movant seeks intermediate relief beyond the claims in the complaint,

the court is powerless to enter a preliminary injunction.”).

In addition, the Court lacks jurisdiction over a motion for a preliminary

injunction when it “raises issues different from those presented in the complaint.”

Adair v. England, 193 F. Supp. 2d 196, 200 (D.D.C. 2002). “A preliminary

injunction may not issue when it is not of the same character as that which may be

granted finally and when it deals with matter outside the issues in the underlying

3 If the Tribe wants to challenge the March 27, 2020, decision, it needs to file a new complaint. See FED. R. CIV. P. 15(a)(2) (a plaintiff is allowed to amend its complaint after an answer is filed only by leave of court or consent); Smith v. Café Asia, 598 F. Supp. 2d 45, 47 (D.D.C. 2009) (“Undue delay, undue prejudice to the defendant, or futility of the proposed amendment(s) are factors that may warrant denying leave to amend.” (citation omitted)).


14

suit.” Sai v. Transp. Sec. Admin., 54 F. Supp. 3d 5, 8-9 (D.D.C. 2014) (internal

quotations omitted); see also De Beers Consol. Mines, 325 U.S. at 220.

In this case, the complaint’s solitary cause of action challenges only Interior’s

2018 decision finding that the Tribe was not under Federal jurisdiction in 1934.

Compl. ¶¶ 61-66. The 2018 decision involved different issues than those present in

the 2015 decision acquiring the parcels in trust. The Tribe, itself, previously

highlighted this fact, explaining that:

The matter before this Court does not concern the status of the Tribe’s trust land in Massachusetts, or the use of that land for gaming, or even the same definition of Indian under the IRA. Rather, the narrow APA question raised by the Tribe in this case before this Court concerns whether the Department acted arbitrarily, capriciously, or contrary to law in determining in its 2018 Decision that the Tribe was not under federal jurisdiction in 1934 pursuant to the IRA’s first definition of “Indian.”

Tribe’s Opp’n to Intervenor-Defs.’ Mot. to Transfer Venue at 19-20, ECF No. 17; see

also id. at 9 (Interior’s “2015 decision has no bearing on the discrete issue of law

that is the subject of the present action.”); id. at 20 (the questions raised in the two

cases are “substantially different”).

However, the harms that the Tribe now claims make injunctive relief

necessary do not stem from Interior’s 2018 decision; rather, they concern Interior’s

March 27, 2020, decision to rescind the 2015 decision. Tribe’s Mot. at 12-17. These

issues are not alleged anywhere in the Tribe’s complaint, and therefore they cannot

be the basis for injunctive relief. See Holly Sugar Corp. v. Johanns, 2006 U.S. Dist.

LEXIS 52948 (D.D.C. Aug. 1, 2006), aff’d, 2007 U.S. App. LEXIS 22624 (D.C. Cir.,

Sept. 21, 2007) (the court lacked jurisdiction to consider the plaintiff’s request for a


15

preliminary injunction because it raised issues that could not have existed when the

complaint was filed).

II. The Tribe is unlikely to succeed on the merits of its claims

It is not necessary for the Court to consider the merits of the Tribe’s claims,

because the Tribe has not met its burden of establishing jurisdiction for its motion

for a preliminary injunction. If the Court does consider the merits, the Tribe is

unlikely to succeed on either a challenge to Interior’s March 27, 2020, decision or

Interior’s 2018 decision.

The Tribe has not filed a complaint with a properly pled claim challenging

Interior’s March 27, 2020, decision. The APA is a limited waiver of sovereign

immunity that provides that a reviewing court may set aside agency action that is

“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with

law.” 5 U.S.C. § 706(2)(A). In order to obtain judicial review of agency action, a

plaintiff must identify a final agency action governed by applicable substantive law,

or show that it has exhausted administrative mechanisms for compelling agency

action that the agency was required by law to take but did not. See Norton v. S.

Utah Wilderness Alliance, 542 U.S. 55, 62-65 (2004).

The Tribe’s motion also makes no attempt to argue that a challenge to

Interior’s March 27, 2020, decision to transfer the land out of trust meets the first

prong of the preliminary injunction standard. And it does not. To comply with the

APA’s requirements—“[n]othing more than a ‘brief statement’ is necessary, so long

as the agency explains ‘why it chose to do what it did.’” Muwekma Ohlone Tribe v.


16

Salazar, 813 F. Supp. 2d 170, 190 (D.D.C. 2011) (quoting Tourus Records, Inc. v.

DEA, 259 F.3d 731, 737 (D.C. Cir. 2001)), aff’d, 708 F.3d 209 (D.C. Cir. 2013). See

also Pub. Citizen, Inc. v. FAA, 988 F.2d 186, 190 (D.C. Cir. 1993) (if the court can

reasonably discern the agency’s path, it will uphold the agency’s decision).

The March 27, 2020, decision certainly meets this standard. The First

Circuit affirmed that Interior’s acquisition of the Mashpee and Taunton parcels was

unlawful. Littlefield, 951 F.3d at 33 (“We hold that the plain meaning of the IRA’s

text precludes the BIA’s interpretation of that section, and so we affirm.”). In

issuing the March 27, 2020, decision, Interior acted in accordance with the

conclusion reached by the First Circuit and the Massachusetts district court. Ex. 1.

Statutory authority no longer exists to support Interior’s acceptance of these parcels

into trust. Thus, the Tribe cannot show that Interior violated the APA by acting to

rescind the 2015 decision in keeping with the First Circuit’s conclusions and

mandate.

Instead, the Tribe concentrates on its challenge to Interior’s 2018 decision

regarding whether the Tribe was under Federal jurisdiction in 1934. Tribe’s Mot. at

11-12. But the Tribe is unlikely to succeed on the merits of this claim (and even if it

did, it could not result in the relief requested in the preliminary injunction motion).

As Interior explained in its summary judgment motion and reply brief which are

incorporated here by reference, the Tribe failed to demonstrate that the United

States took any actions that reflected Federal obligations, duties, responsibilities for

or authority over the Tribe prior to 1934. There were no “significant contacts


17

between the United States and the Tribe through treaty, legislation, or Federal

administrative action” and “practically no evidence of any dealings” between the

Tribe and the Federal government. AR 5107; AR 5105 (Interior’s 2018 decision at

18, 20).

Despite the Tribe’s argument, Interior did not disregard the evidence

provided by the Tribe; rather, the agency considered such evidence and explained

why it did not demonstrate that the Tribe was “under Federal jurisdiction.” Fed.

Defs.’ Mem. of P & A. in Supp. of Cross-Mot. for Summ. J. (Fed. Defs.’ Mot.) at 18-

32, ECF No. 31-1 (detailing Interior’s consideration of all of the census rolls,

historical policy reports, school records, deeds, and land records that the Tribe relies

upon); AR 5106-5115 (Interior’s 2018 decision at 19-28). In doing so, Interior met

the requirements of the APA. See Confederated Tribes of the Grand Ronde Cmty. of

Or., 75 F. Supp. 3d at 408, aff’d, 830 F.3d 552 (Interior “did all that the APA

requires” when it considered the evidence regarding whether an Indian tribe was

“under Federal jurisdiction” in 1934 and “briefly explained” the weight accorded to

the evidence).

While the Tribe contends that Interior departed from its precedent, Interior

analyzed the agency decisions cited by the Tribe, as well as the case law, and

explained the critical distinctions between the Tribe’s submissions and the evidence

used to establish that other tribes were “under Federal jurisdiction” in or prior to

1934. See Fed. Defs.’ Mot. at 28-32. As Interior explained, all of the agency’s other

decisions concluding that Indian tribes were “under Federal jurisdiction” involved


18

evidence whose cumulative weight was far more than presented by the Tribe. Fed.

Defs.’ Reply in Supp. of Cross-Mot. for Summ. J. at 24-25, ECF No. 37. Hence, the

Tribe is also unlikely to succeed on the merits of its cause of action in the complaint.

III. The Tribe has not shown irreparable injury

The Tribe has not shown any harm as a result of Interior’s March 27, 2020,

decision, much less irreparable harm that would justify this Court to use its

equitable authority to grant preliminary relief. Absent a showing of irreparable

harm, no injunction may issue. Cal. Ass’n of Private Postsecondary Sch. v. DeVos,

344 F. Supp. 3d 158, 165 (D.D.C. 2018)

To obtain the requested injunction, the Tribe must demonstrate that

irreparable harm is likely, not just a “possibility.” Winter, 555 U.S. at 22. The D.C.

Circuit “has set a high standard for irreparable injury.” Chaplaincy of Full Gospel

Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006). The Tribe must provide

actual evidence, not simply conclusory statements or unsupported allegations.

“‘Bare allegations of what is likely to occur are of no value;’ the movant must,

instead, ‘substantiate the claim that irreparable injury is likely to occur.’” Cal. Ass’n

of Private Postsecondary Schools, 344 F. Supp. 3d at 171 (quoting Wisc. Gas Co. v.

FERC, 758 F.2d 669, 674 (D.C. Cir. 1985)).

The Tribe’s irreparable harm argument is based on a flawed premise: the

Tribe believes that it cannot receive any Federal funding without the Mashpee and

Taunton parcels being kept in trust and reservation status. Tribe’s Mot. at 13-15.

This is incorrect. For example, the financial assistance and social service programs,


19

listed by the Tribe, can be provided in geographic areas designated by the Assistant

Secretary-Indian Affairs. See 25 C.F.R. §§ 20.100 (definition of service area); 20.101

(adult care, burial, child, disaster, emergency, and general assistance, as well as

services to children, elderly and families, and the tribal work experience program

are provided within Native American tribes’ service areas). Thus, the Tribe’s

assertion that if the parcels are removed from trust and reservation status, it will

no longer be eligible for these funds is without merit.4 See, e.g., 25 C.F.R. § 20.100

(“The Assistant Secretary has designated the entire State of Alaska as a service

area.”).

The Tribe is still able to participate in federal programs as a federally

recognized tribe appearing on the list of Indian Entities Recognized by and Eligible

to Receive Services From the United States Bureau of Indian Affairs. See 85 Fed.

Reg. 5462, 5464 (Jan. 20, 2020). This includes accessing relief funds made available

to tribal governments under Title V of the Coronavirus Aid, Relief, and Economic

Security Act (CARES). See Pub. L. No. 116-136 (Mar. 27, 2020).

Some BIA programs may be affected by a change in the parcels’ trust status.

For example, BIA forestry management programs generally only apply to forested

trust lands (although certain services are available for tribal fee lands). Regardless,

the Tribe’s reliance on funding or services based on the parcels remaining in trust

indefinitely was unjustified given the Littlefield litigation. Interior’s decision to

4 If necessary, the Tribe can seek to designate or modify its service area under the process set forth within 25 C.F.R. § 20.201.


20

accept conveyance of fee land into trust under the IRA was subject to challenge

within the APA’s six-year statute of limitations. See Match-E-Be-Nash-She-Wish

Band of Pottawatomi Indians v. Patchak, 567 U.S. 209 (2012). Interior’s 2015

decision was challenged within just a few months of its issuance. Littlefield,

Compl., ECF No. 1 (filed Feb. 4, 2016). The Tribe has been acutely aware of the

tenuous trust status of the parcels since at least July 28, 2016, when the Littlefield

district court deemed Interior’s 2015 decision unlawful. Littlefield, 199 F. Supp. 3d

391.

Further, the Tribe has not met their burden to prove that any immediate

injury is irreparable. Instead, the Tribe focuses on speculative financial harm and

harm to a third party. Tribe’s Mot. at 13 (alleging that if the Tribe is required to

pay back taxes, the lands could be subject to foreclosure); id. (alleging that the

Tribe’s ability to repay its debts and obtain financing would be affected); id. at 13-14

(alleging that the “confusion and uncertainty could harm a third party that had

acquired the land through tax foreclosure”). Even if these speculative injuries were

to occur, they do not qualify as injury “beyond remediation.” Cal. Ass’n of Private

Postsecondary Schools, 344 F. Supp. 3d at 170-71 (“The standard . . . requires more

than conclusory assertions of potential loss.”). As the D.C. Circuit has long

counseled, “[e]conomic loss does not, in and of itself, constitute irreparable harm.”

Wisc. Gas Co., 758 F.2d at 674.

The Tribe also complains about injuries that may occur due to its loss of

jurisdictional authority over the parcels. Tribe’s Mot. at 15-16 (alleging that


21

jurisdictional questions will arise); id. (alleging that the Tribe will be harmed if it

has to comply with local zoning requirements and pay property taxes). But

Interior’s March 27, 2020, decision is not the cause of these alleged harms. Instead,

they flow from the First Circuit and District of Massachusetts’s rulings in

Littlefield, which concluded that Interior did not have authority to take the Tribe’s

parcels into trust. Because of these rulings, state and local authorities are entitled

to exercise jurisdictional authority over this property. The Tribe cannot turn its

disagreement with the findings in Littlefield into claims of irreparable injury before

this Court. Because the Tribe has not its burden to show irreparable injury, its

motion for injunctive relief should be denied.

IV. Neither the balance of the harms nor the public interest favor an injunction

The Tribe’s request for a preliminary injunction should also be denied

because the equities and the public interest favor Interior. Because any harm posed

to the Tribe is speculative or reparable, this counsels against entering the requested

injunction. Where the federal government is a party, the third and fourth

injunction factors—the balance of equities and the public interest—“merge.” Nken

v. Holder, 556 U.S. 418, 420, 435 (2009). Courts must “balance the competing

claims of injury and must consider the effect on each party of the granting or

withholding of the requested relief[,] and] [i]n exercising their sound discretion,

courts of equity should pay particular regard for the public consequences.” Winter,

555 U.S. at 24 (citations omitted).


22

The First Circuit and District of Massachusetts both concluded that Interior

incorrectly construed the IRA’s second definition of “Indian,” and as a result,

Interior’s acquisition of the parcels was unlawful. Littlefield, 951 F.3d at 36-41;

Littlefield, 199 F. Supp. 3d at 396-400. The Tribe contends that the First Circuit

did not order Interior to transfer the parcels out of trust. Tribe’s Mot. at 18-19. But

the public interest is served by Interior’s recognition of the Littlefield rulings and

the agency’s decision to act in keeping with the findings made by the appellate and

district courts. Fund for Animals v. Espy, 814 F. Supp. 142, 152 (D.D.C.) (“There is

a strong public interest in meticulous compliance with the law by public officials.”).

Indeed, the First Circuit found the land transfer to be unlawful and the Tribe

cannot now contend that the balance of equities fall in its favor by way of Interior

reversing the land transfer as it is wholly consistent with the First Circuit’s final

mandate.

Relying on the Maytubby Affidavit, which was submitted during the

Littlefield district court proceedings, the Tribe argues that it is not in Interior’s

interest to take the parcels out of trust. Tribe’s Mot. at 17. The significance that

the Tribe places on this statement is misplaced. The “perplexing situation in which

the ROD is still in effect and yet the parcels are still in trust,” which the Maytubby

Affidavit discussed—is no longer an issue. Tribe’s Mot., Ex. 1, Aff. of Bruce W.

Maytubby ¶ 7. Here, consistent with the First Circuit’s holding on the law, Interior

has directed BIA to rescind the 2015 decision and transfer the parcels out of trust.

Ex. 1. Similarly, the Maytubby Affidavit was concerned with the effect of reversing


23

the trust transfer prior to the issuance of a final decision on the merits. Aff. of

Bruce W. Maytubby ¶ 6. Now, such as a decision has been issued by the appellate

court in Littlefield, so the concerns described in the Maytubby Affidavit are no

longer relevant.

In addition, in the 2018 decision, Interior conducted a thorough analysis and

concluded that the Tribe did not meet the IRA’s first definition of “Indian,” nor the

Act’s second definition as defined in Littlefield. See supra pp. 19-21. There are no

outstanding determinations that Interior needs to make regarding its statutory

authority to acquire the parcels in trust, and the public interest is served by

recognizing the agency’s extensive and probing analysis of these issues which

included consideration of the Tribe’s views.

Although the Tribe criticizes Interior’s March 27, 2020, decision, this too fails

to establish that the equities weigh in the Tribe’s favor. Tribe’s Mot. at 18-21. As

discussed above, the Tribe has no claims before this Court challenging the

March 27, 2020, decision. In any event, the Tribe has not shown that Interior’s

decision was arbitrary and capricious. See supra pp. 18-19. The Tribe suggests that

Interior is acting inconsistently with its past policy and practices. Tribe’s Mot. at

20. But Interior has taken land out of trust in other cases. See, e.g., Land Status:

Lower Brule Sioux Tribe, 62 Fed. Reg. 26,551 (May 14, 1997).5 And the agency

recognizes that fee-to-trust transfers must be vacated, if such acquisitions are found

5 Interior routinely transfers land from trust to fee status as part of the probate process. See 25 U.S.C. § 2206(b)(2)(B).


24

to be in error. See Stand Up for Cal. v. U.S. Dep’t of the Interior, 919 F. Supp. 2d

51, 83 (D.D.C. 2013) (finding that a future order vacating the trust transfer will not

be precluded and noting that Interior has assured the court that the agency will

take the land out of trust, if so ordered); see also Crawford-Hall v. United States,

394 F. Supp. 3d 1122, 1155 (C.D. Cal. 2019) (vacating Interior’s decision and

acceptance of conveyance of deed to the United States in trust for the Band).

Finally, any consideration of the public interest must also take into account

state and local interests in Massachusetts. Because statutory authority no longer

exists to support Interior’s acceptance of these parcels into trust, state and local

authorities are entitled to exercise regulatory and other jurisdictional authority

over this land. Interior’s March 27, 2020, decision clarifies the status of this land

and dispels jurisdictional confusion that may exist after the issuance of the First

Circuit’s mandate. The public interest is served by providing clarity to state and

local governments regarding the status of these parcels. Thus, the equities do not

lie in the Tribe’s favor and its motion should be denied.

Conclusion

The Court lacks jurisdiction to consider the Tribe’s motion. If the Tribe

wants relief from the First Circuit’s judgment and mandate, the Tribe needs to seek

relief in that court. Because the Tribe’s motion seeks a different remedy than the

one in the Tribe’s complaint, addresses causes of action that are outside of its

complaint, and raises new issues that are not before the Court, this Court cannot

enter a preliminary injunction halting Interior’s March 27, 2020, decision. The


25

Tribe has also failed to meet its burden of proof on each of the requirements for this

Court to consider the extraordinary remedy of a preliminary injunction. Based on

the aforementioned, Federal Defendants respectfully request that the Tribe’s

motion be denied.

Respectfully submitted this 21st day of April, 2020.

For Federal Defendants: PRERAK SHAH Deputy Assistant Attorney General /s Sara E. Costello SARA E. COSTELLO Trial Attorney United States Department of Justice Environment & Natural Resources Division Natural Resources Section P.O. Box 7611 Washington, DC 20044-7611 Tel: 202-305-0484 Fax: 202-305-0506 Email: [email protected] OF COUNSEL Robert Hitchcock Attorney-Advisor Branch of Environment & Lands Office of the Solicitor Division of Indian Affairs U.S. Department of the Interior


mailto:[email protected]

26

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on April 21, 2020, a copy of the foregoing was filed

through the Court’s CM/ECF management system and electronically served on

counsel of record.

/s Sara E. Costello Sara E. Costello Trial Attorney


IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ... · Interior, finding that Interior...

Documents

Transcript of IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ... · Interior, finding that Interior...