Thor O. Emblem CSBN 141880 Tracy L. Emblem CSBN 145484 2 ... · Marlyn Nutraceuticals, Inc. v....

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Plaintiffs’ Reply Memorandum re TRO12-cv-00551-WQH (KSC)

Thor O. Emblem CSBN 141880Tracy L. Emblem CSBN 145484LAW OFFICES OF THOR O. EMBLEM800 W. Grand Ave., Ste BEscondido, CA 92025Telephone: (760) 738-9301Facsimile: (760) 738-9409

Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

TIFFANY L. (HAYES) AGUAYO, et al.,

Plaintiffs,

v.

KEN SALAZAR, et al.,

Defendants.

))))))))))

CASE NO. 12-cv-00551-WQH (KSC)

PLAINTIFFS’ REPLY MEMORANDUMTO FEDERAL DEFENDANTS’OPPOSITION TO PLAINTIFFS’ MOTION FOR A TEMPORARYRESTRAINING ORDER

Case 3:12-cv-00551-WQH-KSC Document 15 Filed 03/14/12 of 23

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Plaintiffs’ Reply Memorandum re TRO12-cv-00551-WQH (KSC) i

TABLE OF CONTENTS

REPLY MEMORANDUM 1

I. PLAINTIFFS SEEK INJUNCTIVE RELIEF TO PROTECT THE STATUS QUO 3WHILE AGENCY REVIEW IS PENDING INVOLVING THE LEGALITY OF FEDERAL ACTION TAKEN BY THE BIA IN INTERPRETING AND “APPROVING” AN UNRATIFIED CONSTITUTION WHICH INVOLVESGOVERNMENT-TO-GOVERNMENT RELATIONS, NOT AN INTRATRIBAL DISPUTE.

II. THIS COURT CAN GRANT INJUNCTIVE RELIEF BECAUSE PLAINTIFFS 4HAVE EXHAUSTED ADMINISTRATIVE REVIEW BY REQUESTING THEASSISTANT SECRETARY TAKE IMMEDIATE ACTION TO PRESERVE THE STATUS QUO UNDER 25 C.F.R. 2.8, WHICH ACTION IS CONSIDERED “FINAL” AND ALLOWS APPEAL OF THE ASSISTANT SECRETARY’S INACTION.

III. PLAINTIFFS CONTEND THAT THE BAND’S GOVERNING ENROLLMENT 6 ORDINANCE NO. 1 – DELEGATES FINAL AND CONCLUSIVE DECISION-MAKING TO THE SECRETARY OF THE INTERIOR.

IV. PLAINTIFFS HAVE ESTABLISHED THAT THEY HAVE EXHAUSTED 10 ADMINISTRATIVE REVIEW AND THAT FEDERAL COURT JURISDICTION IS APPROPRIATE UNDER COOSEWOON V. MERIDIAN OIL CO., 25 F. 3D 920 (10TH CIR. 1994).

V. UNDER THE HEIN CASE, THE BAND IS NOT A REQUIRED PARTY IN 11ORDER FOR THE COURT TO HAVE JURISDICTION AND ISSUE A PROHIBITORY INJUNCTIVE ORDER REQUIRING THE ASSISTANT SECRETARY TO PRESERVE THE STATUS QUO.

VI. PLAINTIFFS HAVE ESTABLISHED THAT THE BALANCE OF 14HARDSHIPS TIP HEAVILY TOWARD GRANTING A TEMPORARY RESTRAINING ORDER IN THE PLAINTIFFS’ FAVOR.

CONCLUSION 17


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Plaintiffs’ Reply Memorandum re TRO12-cv-00551-WQH (KSC) ii

TABLE OF AUTHORITIES

Statutes and Federal Regulations

5 U.S.C. § 702 4

5 U.S.C. § 704 4

5 U.S.C. § 706 4

25 U.S.C. § 1A 5

25 C.F.R. § 2.6 5

25 C.F.R. § 2.8 4

25 C.F.R. § 2.9 5

25 U.S.C. § 1302 (8) 13

Federal Rules

Fed. R. Civ. P. 19 1, 11

Fed. R. Civ. P. 65(c) 17

Federal Cases

Adams v. Morton 7581 F.2d 1314 (9th Cir. 1978)

Alliance for the Wild Rockies v. Cottrell 14632 F.3d 1127 (9th Cir. 2011)

Alvarado v. Table Mountain Rancheria 9509 F.3d 1008 (9th Cir. 2007)

Anderson v. Sullivan 5959 F.2d 690 (8th Cir.1992)

Beltran v. Myers 16677 F.2d 1317 (9th Cir. 1982)

Cachil Dehe Band of Wintun Indians of the Colusa Indian Community 15v. California 547 F.3d 962 (9th Cir. 2008)

Chilkat Indian Village v. Johnson 3870 F.2d 1469 (9th Cir. 1989)

Collins v. Brewer 16727 F. Supp. 2d 797 (D. Ariz. 2010)


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Plaintiffs’ Reply Memorandum re TRO12-cv-00551-WQH (KSC) iii

TABLE OF AUTHORITIES (Cont’d)

Federal Cases, cont.

Confederated Tribes of Chehalis Indian Reservation v. Lujan 12928 F.2d 1496 (9th Cir. 1991)

Coosewoon v. Meridian Oil Co. 4, 1025 F. 3d 920 (10th Cir. 1994)

Diaz v. Brewer 16656 F.3d 1008 (9th Cir. 2011)

Hein v. Capitan Grande Band of Diegueno Mission 13, 15201 F. 3d 1256 (9th Cir. 2000)

Indep. Living Ctr. of Southern Cal, Inc. v. Maxwell-Jolly 16572 F.3d 644 (9th Cir. 2009)

Kildare v. Saenz 16325 F. 3d 1078 (9th Cir. 2003)

Lavapies v. Bowen 5883 F.2d 465 (6th Cir.1989)

Lewis v. Norton 8424 F. 3d 959 (9th Cir. 2005)

Lopez v. Heckler 16713 F.3d 1432 (9th Cir. 1983)

Makah Indian Tribe v. Verity 11, 15910 F. 2d 555 (9th Cir. 1990)

Marlyn Nutraceuticals, Inc. v. Mucos PharmaGmbH & Co. 5571 F.3d 873 (9th Cir. 2009)

Mathews v. Eldridge 5424 U.S. 319 (1976)

Orantes-Hernandez v. Smith 16541 F.Supp. 351 (CD CA 1982)

Ordinance 59 Ass’n v. U.S. Dep’t of Interior Sec’y 9163 F.3d 1150 (10th Cir. 1998)

Presbyterian Church v. United States 4870 F.2d 518 (9th Cir. 1989)

Ranchers Cattlemen Action Legal Fund United Stockgrowers of Am 7 v. U.S. Dep’t of Agric.415 F. 3d 1078 (9th Cir. 2005)


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Plaintiffs’ Reply Memorandum re TRO12-cv-00551-WQH (KSC) iv


Federal Cases, cont.

Ranson v. Babbitt 10, 1369 F. Supp. 2d 141 (DDC 1999)

Republic of Philippines v. Pimentel 12553 U.S. 851 (2008)

Santa Clara Pueblo v. Martinez 6, 10436 U.S. 49 (1978)

Seminole Nation v. Norton 3223 F. Supp. 2d 122 (D.D.C. 2002)

Seminole Nation v. United States 12316 U.S. 286 (1942)

Smith v. Babbitt 9100 F.3d 556 (8th Cir. 1996)

Southwest Ctr. for Biological Diversity v. Babbitt 15150 F.3d 1152 (9th Cir.1998)

Stanley v. University of Southern California 1213 F.3d 1313 (9th Cir. 1994)

Stormans, Inc. v. Selecky 16586 F.3d 1109 (9th Cir. 2009)

Thorbus v. Bowen 5848 F.2d 901 (8th Cir.1988)

Timbisha Shoshone Tribe v. Kennedy 8687 F.Supp. 2d 1171 (E.D. Cal. 2009)

Williams v. Gover 9490 F.3d 785 (9th Cir. 2007)

Winter v. Natural Res. Def. Council 14555 U.S. 7 (2008)

V.L. v. Wagner 16669 F.Supp. 2d 1106 (N.D. Cal. 2009)

Yellowstone County v. Pease 1496 F.3d 1169 (9th Cir. 1996)

Indian Law Reporter

Milam v. United States Dep’t of Interior 3, 9, 1110 I.L.R. 3013 (1982)


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Plaintiffs’ Reply Memorandum re TRO12-cv-00551-WQH (KSC) v


IBIA Decisions

Greendeer v. Minn. Area Director22 IBIA 91 (1992) 9

United Keetoowah Band of Cherokee Indians v. Muskogee Area Director 1122 IBIA 75 (1992)


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Plaintiffs’ Reply Memorandum re TRO12-cv-00551-WQH (KSC) 1

REPLY MEMORANDUM

The Defendants have filed a response to Plaintiffs motion for a temporary restraining order

and preliminary injunctive relief asserting several points. (1) The Court does not have jurisdiction to

hear the cause because the enrollment issue is an intra-tribal dispute; (2) the Court lacks jurisdiction

to hear the cause under the Administrative Procedures Act; (3) The Court lacks jurisdiction to review

the case because Plaintiffs cannot allege a discrete action; (4) The Court lacks jurisdiction to review

the case under the Mandamus and Venue act; (5) The Court lacks jurisdiction to review the case

because of Rule 19 and the Indian’s sovereignty; and (6) Plaintiffs have failed to establish that an

injunction should be granted.

The United States’ factual background about the Pala Band’s constitution ignores a very

critical provision in the Band’s putative constitution. The Defendants assert that “on November 12,

1997, a majority of members voting in a duly-called meeting of the General Council of the Tribe

voted to accept the new Constitution ‘to supersede the Articles of Association....’” The Defendants

contend the 27-0 vote at a “duly called meeting” at which a quorum was present was sufficient to

enact the constitution and it was effective on that date. (See Defendants’ Opposition, p. 2) Plaintiffs

disagree.

The Defendants opposition ignores the plain language in Article IX of the Band’s constitution

which provides the “effective date” of the constitution and states:

This Constitution shall become effective immediately after its approval by a majority voteof the voters voting in a duly called election at which this Constitution is approved by theBureau of Indian Affairs.

(See Complaint, Exhibit 5-7, “Effective Date” [000201], emphasis added)

The Band received approval from the Bureau of Indian Affairs (“BIA”) as to the

constitution’s form, but the Band never ratified its constitution in a duly called election for it to

become effective pursuant to its own requirement as stated in Article IX of the constitution. The

difference between a “meeting” and an “election” is not merely one of semantics. “Elections” are

clearly defined in both the Articles of Association and the Band’s putative constitution. “Elections”

include “absentee ballots.” Absentee ballots for voting are sent to all eligible voters who reside off


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1 The Band’s own website publicly states that it is governed by the Articles of Association.(Complaint, Exhibit 6 [000257-258] The Band is organized and governed under Articles ofAssociation approved in July 1961 and later amended in 1973 and 1980.


the reservation, and tribal members are allowed to vote by mail. (Annalee Trujillo Yanez

Declaration, ¶ 3)

At the time the Band’s general council voted to adopt a new constitution which was thereafter

approved by the BIA, the constitution still had to be ratified “by a majority vote of voters voting in a

duly called election.” When an “election” is held, an election committee is set up, the election has

polling places, and absentee ballots. (See Exhibit 5-7, Constitution, p. 6 [000196]); see also the

Band’s Articles of Association, Section 4 - “Elections” Exhibit 5-3 [000164-165].) A “meeting” is

not a substitute for an “election.”

In fact, the BIA understood that the Band’s constitution had to be ratified through a duly

called “election” because it stated this condition in the December 1997 “Memorandum” from the

Superintendent to the Sacramento Director, wherein the Superintendent cites Article IX as providing

the constitution’s effective date “immediately after its approval by a majority vote of the voters

voting in a duly-called election.” (Complaint, Exhibit 9 [000205], emphasis added)

As will be discussed in detail, Plaintiffs have demonstrated by the Band’s own public

admission that it is governed by the Articles of Association.1 The Band’s putative constitution was

not ratified in an election with absentee ballots. The Band’s governing enrollment ordinance is the

original ordinance No. 1 which delegates “final and conclusive” enrollment decision to the BIA.

The BIA made a final and conclusive decision regarding the Plaintiffs’ ancestor, Margarita Britten’s

blood quantum in 1989, which is entitled to collateral estoppel effect and is binding on the tribe

under the government-to-government relationship.

Plaintiffs have also demonstrated that the Assistant Secretary has a fiduciary duty to enforce

the status quo while their agency appeal challenging the validity of the Band’s constitution is before

the agency, irreparable harm, that the Court has jurisdiction under the APA, and that the balance of

hardships tip heavily in the Plaintiffs’ favor.

///


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


I.

PLAINTIFFS SEEK INJUNCTIVE RELIEF TO PROTECT THE STATUS QUOWHILE AGENCY REVIEW IS PENDING INVOLVING THE LEGALITY OFFEDERAL ACTION TAKEN BY THE BIA IN INTERPRETING AND“APPROVING” AN UNRATIFIED CONSTITUTION WHICH INVOLVESGOVERNMENT-TO-GOVERNMENT RELATIONS, NOT AN INTRATRIBALDISPUTE.

This is a case where the Band’s constitution was never ratified in a duly held election and the

Executive Committee’s (“EC”) power to enact the 2005 and 2009 enrollment ordinances which

radically changes membership rights and gives the EC substantial powers without a referendum

election is at issue. It raises a federal issue of tribal power. Cf., Chilkat Indian Village v. Johnson,

870 F.2d 1469, 1475 (9th Cir. 1989) [“in some cases enforcement of a tribe’s ordinance against its

own members may raise federal issues of tribal power.”]

Plaintiffs’ case is not an intratribal dispute. “Where plaintiffs question not only the propriety

of tribal action, but the legality of acts of federal officials in approving a tribal action, the matter is

not merely an intratribal dispute insulated from federal court review.” See Milam v. United States

Dep’t of Interior, 10 I.L.R. 3013, 3015 (D.D.C. 1982). (See Complaint, Exhibit 9 [000273]) “The

obligation of the BIA to review a tribal constitution is justified under its trust responsibility to

administer the government-to-government relations between the United States and the Indian

Tribes.” Ibid. In Seminole Nation v. Norton, 223 F. Supp. 2d 122, 137 (D.D.C. 2002) the court

stated:

The Court respects and understands the Seminole Nation’s right to self-government. However, unlike Harjo, Ransom, and Wheeler, there is an element here of oppressive actionon the Nation’s part against its own minority members. As another member of this court hasrecognized: “The Secretary of the Interior is charged not only with the duty to protect therights of the tribe, but also the rights of individuals members.”

No matter how broadly the Defendants would like to paint this matter, the issue is clear. The

BIA must make a final determination on which of the Band’s governing documents are validly

enacted. That final decision will be subject to APA court review, and until the BIA makes a final

decision in Plaintiffs’ case, the Plaintiffs are entitled to injunctive relief to preserve the status quo.

///

///


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2 The APA contains a waiver of sovereign immunity in Section 702 which states:

A person suffering legal wrong because of agency action, or adversely affected...by agencyaction within the meaning of a relevant statute, is entitled to judicial review...An action in acourt of the United States seeking relief other than money damages and stating a claim thatan agency or an officer or employee thereof acted or failed to act in an official capacity.

In Presbyterian Church v. United States, 870 F.2d 518, 525 (9th Cir. 1989) (see Defendants’Opposition, p. 7, fn. 6) the Ninth Circuit reversed the district court on this issue finding Section 702of the Administrative Procedure Act waives sovereign immunity for claims for relief other thanmoney damages.


II.

THIS COURT CAN GRANT INJUNCTIVE RELIEF BECAUSE PLAINTIFFS HAVEEXHAUSTED ADMINISTRATIVE REVIEW BY REQUESTING THE ASSISTANTSECRETARY TAKE IMMEDIATE ACTION TO PRESERVE THE STATUS QUOUNDER 25 C.F.R. 2.8, WHICH ACTION IS CONSIDERED “FINAL” AND ALLOWSAPPEAL OF THE ASSISTANT SECRETARY’S INACTION.

Defendants next argue that the Plaintiffs’ failed to appeal their claims administratively, and

therefore, their cause of action for injunctive relief is not a “final” decision under the Administrative

Procedures Act . (See Defendants’ Opposition, pp. 6-10.)

However, 25 C.F.R. § 2.8 permits an appeal from inaction of the agency if the agency fails to

provide a decision in writing within 10 days. Moreover, 5 U.S.C. § 704 states that “final agency

action for which there is no other adequate remedy in a court” is subject to judicial review and 5

U.S.C. § 706 “provides that the reviewing court shall compel agency action unlawfully withheld or

unreasonably delayed.”2

Agency regulations have the force of law. The agency inaction is “final” for purposes of

seeking injunctive relief in federal court. In Coosewoon v. Meridian Oil Co., 25 F. 3d 920 (10th Cir.

1994) the Tenth Circuit Court of Appeals stated:

Consistent with the exhaustion requirement, the Secretary has instituted an administrativeprocedure by which a party may challenge the Secretary’s inaction concerning a particularissue. Under this procedure, a party may request that the Secretary take action on a particularmatter, see 25 C.F.R. § 2.8(a), and the Secretary must respond within ten days of receipt ofthe request by either issuing a decision on the merits of the request or establishing a later dateby which a decision shall be made, see id. § 2.8(b). If no decision is rendered, the Secretary’sinaction becomes final for purposes of judicial review because the Secretary is the highestauthority within the agency.

Id. at p. 925, emphasis added.


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


The Secretary of the Interior has delegated authority over Indian affairs to the Assistant

Secretary. (25 U.S.C. § 1A; see Complaint, ¶ 15) Plaintiffs served their request to take immediate

action to preserve the status quo on Defendant Echo Hawk, the highest authority within the BIA.

This Court can and should follow the Tenth Circuit and find that the Assistant Secretary’s failure to

act is “final” for purposes of judicial review and issue a prohibitory injunctive order requiring the

agency to preserve the status quo. See Marlyn Nutraceuticals, Inc. v. Mucos PharmaGmbH & Co.,

571 F.3d 873, 878-879 (9th Cir. 2009).

In Plaintiffs’ case, Plaintiffs appealed their request to preserve the status quo to the highest

agency level. Defendant Echo Hawk’s failure to take any action to preserve the status quo within 10-

days constitutes “final” action within the meaning of the APA. Plaintiffs are not seeking monetary

damages from the defendants. In fact, in Wapato Heritage, LLC v. United States, 2009 WL

3782689, the United States argued that the BIA administrative review process set forth in 25 C.F.R.

§§ 2.6-2.9 was not sought but was required for exhaustion prior to seeking judicial review. (See

Plaintiffs’ Reply Exhibit 1 [000004])

Here, Plaintiffs’ followed the agency rule and exhausted agency review before filing their

complaint. Notwithstanding, “[a]n exception to the exhaustion of administrative remedies

requirement lies in situations where the claimant: (1) raises a colorable constitutional claim collateral

to his substantive claim of entitlement; (2) shows that irreparable harm would result from

exhaustion; and (3) shows that the purposes of exhaustion would not be served by requiring further

administrative procedures.” Anderson v. Sullivan, 959 F.2d 690, 693 (8th Cir.1992) (citing Thorbus

v. Bowen, 848 F.2d 901, 903 (8th Cir.1988) (citing Mathews v. Eldridge, 424 U.S. 319, 329-331

(1976)); Lavapies v. Bowen, 883 F.2d 465, 467 (6th Cir.1989)).

As demonstrated by Plaintiffs’ complaint and accompanying exhibits and declarations,

Plaintiffs have provided the Court with substantial evidence of irreparable harm which would

warrant an exception to the any further exhaustion.

///

///


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


III.

PLAINTIFFS CONTEND THAT THE BAND’S GOVERNING ENROLLMENTORDINANCE NO. 1 – DELEGATES FINAL AND CONCLUSIVE DECISION-MAKING TO THE SECRETARY OF THE INTERIOR.

Citing Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978), the government argues that the

Band has the sovereign right to determine its own membership, and therefore this Court lacks

jurisdiction to intrude over tribal internal affairs. (See Defendants’ Opposition, pp. 10-13.)

As argued by the U.S. Attorney in court on March 8, 2012, there is a distinction between the

original enrollment ordinance No. 1 enacted pursuant to the Articles of Association – and the 2009

revised ordinance No. 1 enacted pursuant to the putative constitution.

Ordinance No. 1 enacted pursuant to the Articles of Association, Section 3 requires the EC to

make an initial eligibility determination, and Sections 4 and 5 require enrollment determinations to

be made by the Director of the BIA in Sacramento. Appeals of any enrollment decisions to be filed

with the Director. Section 5 also provides that all decisions of the Secretary of Interior are “final and

conclusive.” (Complaint, Exhibit 5 [Attached Exhibit 4] pp.2-3 [000183-184])

As demonstrated, the decision regarding Plaintiffs’ ancestor, Margarita Britten’s blood

quantum, who was identified as 4/4 blood quantum on the Pala Allotment roll approved by the

Secretary of Interior on November 3, 1913, was adjudicated by the Assistant Secretary and was “final

and conclusive” in 1989 under the Secretary’s authority to determine enrollment decisions delegated

to the BIA by the Band in the Band’s enrollment ordinance. (Complaint, Exhibit 5 Attached Exhibit

12 [000227], Exhibit 5-13 [000231-233], Exhibit 5-14 [000235-236] and Exhibit 5-15 [000238-

241]) As emphasized, that decision is entitled to collateral estoppel effect and is binding on the Band

under the government-to-government relationship.

The BIA and its Pacific Regional Office have taken the unfounded and unreasonable position

and interpretation of the Band’s subsequent attempt to adopt a constitution claiming that the

constitution is valid because Resolution 97-36 was passed at a meeting of the [Band] held on

November 19, 1997, by a vote “27” for” and “0” Against” with a quorum present. (See Complaint

Exhibit 5-8 [2/23/2012 letter] p. 3 [000269])


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


Plaintiffs’ appeal before the BIA challenges the legality of the Band’s constitution because it

was never ratified by election pursuant to Article IX of the Constitution. The U.S. Attorney argued

on March 8, 2012, that the Band’s EC had the authority to enact the revised enrollment ordinance

No. 1. However, both the 2005 and 2009 revised ordinances plainly state that the EC’s power to

revise the enrollment ordinance is authorized by the constitution. (Complaint, Exhibit 5 [Attached

Exhibit 10] p. 1; Complaint, Exhibit 5 [Attached Exhibit 11] p. 1)

The BIA is governed by the uniform rule of construction that the legislative will must be

ascertained from the text of the governing document if the words are clear and plain and the whole

enactment internally cohesive. Adams v. Morton, 581 F.2d 1314, 1320 (9th Cir. 1978). The

Defendants have made no rational connection between the facts and the choice made because (1) the

Band publicly admits it is governed by Articles of Association, and (2) a meeting is not an election

and does not satisfy Article IX of the putative constitution which conditioned the constitution’s

effective date to “immediately after its approval by a majority vote of the voters voting in a duly-

called election.” See Ranchers Cattlemen Action Legal Fund United Stockgrowers of Am v. U.S.

Dep’t of Agric., 415 F. 3d 1078, 1093 (9th Cir. 2005) (citation omitted). If the constitution was

effective based on a meeting, the constitution would have said “meeting” in Section IX rather than

“election” which requires notice and opportunity for tribal members to vote by absentee ballots.

In Plaintiffs’ case, if the constitution was never ratified as Plaintiffs allege, the EC’s 2005 and

2009 revised enrollment ordinances removing the BIA from final decisions are void ab inito. In that

case, the Band’s original enrollment ordinance No. 1 delegates its authority to determine

membership to the Secretary of Interior to make “final and conclusive” enrollment decisions.

(Complaint, Exhibit 5-4 “Appeals” Section 5 [000184].)

In Cahto Tribe v. Dutschke, Regional Director for the Pacific Region, Bureau of Indian

Affairs, et al, United States District Court, Eastern District of California, Case No. 2:10-cv-01306-

GEB-GGH, (September 22, 2011), the case involved a similar enrollment ordinance. The district

court found for the disenrolled members and held that the Tribe had delegated its authority to the

BIA to review enrollment decisions pursuant to the Cahto Tribe’s enrollment ordinance No. 1


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3 The Cahto Tribe disenrolled the Sloan/Hecker family on grounds that they had beenenrolled with a previous tribe. For several years the BIA claimed the disenrollment decision was “aninternal matter” and delayed decision. In 2009, the BIA finally rendered a decision. (See Plaintiffs’Reply Exhibit 2)


provisions.3 (See Plaintiffs’ Reply Exhibit 2 [000018]) Even though the BIA does not like to be

involved in enrollment actions, it nonetheless exercised its fiduciary duty to the enrolled

Sloan/Hecker tribal members by withholding government benefits until the Cahto Tribe recognized

the federally approved members. (See Plaintiffs’ Reply Exhibit 3 [000025])

However, in the Cahto case, the BIA took sixteen years from 1995 to 2011, to recognize the

fact that disenrolled members were entitled to enrollment. Unlike the Sloan/Hecker tribal members,

Plaintiffs who are still federally approved tribal members have promptly sought an order to preserve

the status quo to prevent the BIA from removing them from the federally approved “official” roll

until their administrative agency appeal is fully reviewed. (See Declaration of Peter Trujillo Jr. in

support of Plaintiffs’ TRO motion, ¶ 3) The federally approved roll is used for all distribution of

tribal benefits such as health insurance, per capita payments, grants and any type of services. (See

Declaration of Annalee Trujillo Yanez. in support of Plaintiffs’ TRO motion, ¶ 12)

The Defendants acknowledge that a tribe can “surrender” its right to determine membership,

citing Timbisha Shoshone Tribe v. Kennedy, 687 F.Supp. 2d 1171, 1185 (E.D. Cal. 2009). (See

Defendants’ Opposition, p. 11.) In Plaintiffs’ case, the Band surrendered its right to determine tribal

membership when it enacted the original enrollment Ordinance No. 1 which gave the Secretary of

Interior the “final” and “conclusive” authority to make decisions in enrollment matters. In 1989, the

Secretary of Interior made a final and conclusive decision as the Plaintiffs’ ancestor, Margarita

Britten’s blood quantum, and Plaintiffs have been enrolled with the Band since then pursuant to the

final and conclusive decision.

Lewis v. Norton, 424 F. 3d 959 (9th Cir. 2005) cited by Defendants is not on point. In that

case, the Plaintiffs were “individuals seeking membership in the Table Mountain Rancheria.” (See

Defendants’ Opposition, p. 11.)

///


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

4 See Defendants’ Opposition, p. 9. In Smith v. Babbitt, 100 F.3d 556, 559 (8th Cir. 1996),the decision regarding tribal enrollment was vested with the Tribe and had not been delegated to theBIA.


Likewise, in Alvarado v. Table Mountain Rancheria, 509 F.3d 1008 (9th Cir. 2007) the

plaintiffs were “individuals who unsuccessfully petitioned the Table Mountain Tribal Council for

admission to the Table Mountain Rancheria.” Id. at p. 1011. Ordinance 59 Ass’n v. U.S. Dep’t of

Interior Sec’y, 163 F.3d 1150 (10th Cir. 1998) cited by Defendants, involved 43 individuals who

applied for membership in the Eastern Shoshone Tribe. Id. at p. 1151. In Williams v. Gover, 490

F.3d 785 (9th Cir. 2007) the plaintiffs brought suit in federal court but were not enrolled tribal

members. Id. at p. 788.

There is a vast difference in these case involving non-tribal member litigants and Plaintiffs’

case. Plaintiffs are not applicants, they are federally enrolled tribal members. Until the Plaintiffs are

removed from the official federally approved roll there is a clear fiduciary duty owed Plaintiffs.

(Complaint, ¶ 8, 16) Assistant Secretary Echo Hawk acknowledges and describes the government’s

fiduciary duty as follows:

“The federal government has the duty to protect individual tribal members even from theirown tribal government. Milam v. Dept. of the Interior, 10 ILR 3013, 3017 (D.D.C. 1982);Seminole Nation v. Norton, 223 F. Supp. 2d 122, 137 (D.D.C. 2002). Most obviously theIndian Civil Rights Act (ICRA) requires disenrollments must be conducted in a manner thatprovides the tribal member with due process and ensures that member’s equal protectionunder the law (25 U.S.C. § 1302(a)(8) and the Federal Government will not acknowledge or accept an action by a tribal government that violates ICRA (Greendeer v. Minn. AreaDirector, 22 IBIA 91, 97 (1992).”

(See Plaintiffs’ Reply Exhibit 4 [000028])

Contrary to Defendants’ argument, the Assistant Secretary’s duty to protect tribal members

during disenrollment proceedings is as fiduciary duty as a matter of law, and therefore, it is a discrete

agency action within the meaning of the APA which requires the Assistant Secretary to take all

action necessary to preserve the status quo.4

In fact, the Assistant Secretary has protected the status quo while an enrollment issue was

pending agency review in the past. In the San Pasqual case, the tribe terminated the Marcus Alto Sr.


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


descendants’ membership, voting rights and tribal benefits, including their monthly per capita

income, while the tribe’s enrollment appeal was pending BIA agency review. Defendant Echo Hawk,

however, ordered the Band to immediately restore the status quo and forwarded a copy of the order

to the NIGC. (See Plaintiffs’ Reply Exhibit 5 [000034]) Additionally, in that case, Echo Hawk

ordered the Band to preserve the status quo while the case is pending district court review. (See

Plaintiffs’ Reply Exhibit 6 [000037-000038])

Contrary to the government’s repeated claims, this is not an intratribal dispute. Rather, this is

a case where the BIA has a clearly defined duty to reasonably interpret tribal governing documents,

the Assistant Secretary has acknowledged the fiduciary duty to ensure procedural due process while

an enrollment appeal is pending, and there is nothing in any of the Band’s documents, contested or

otherwise, which would allow the EC to terminate the Plaintiff tribal members’ rights and benefits

effective immediately, and before a final decision is made by the BIA.

It is simply not appropriate to do nothing, while the Plaintiffs families continue to suffer

severe hardships. Where the Band has delegated its authority to the BIA for determination in

enrollment matters and the BIA must make a determination of governing documents, Santa Clara

Pueblo v. Martinez, supra, 436 U.S. 49 does not apply.

IV.

PLAINTIFFS HAVE ESTABLISHED THAT THEY HAVE EXHAUSTEDADMINISTRATIVE REVIEW AND THAT FEDERAL COURT JURISDICTION ISAPPROPRIATE UNDER COOSEWOON V. MERIDIAN OIL CO., 25 F. 3D 920 (10TH

CIR. 1994).

Defendants further argue that mandamus does not provide a basis for jurisdiction. (See

Defendants’ Opposition, pp. 14-16) Plaintiffs have demonstrated irreparable harm. This Court has

jurisdiction to order prohibitory injunctive relief to protect the status quo. Plaintiffs have not replied

to the Defendants’ argument because the mandamus and venue act is unnecessary to decide this case.

Plaintiffs have an adequate remedy available under the Administrative Procedure Act (APA). Cf.,

Ranson v. Babbitt, 69 F. Supp. 2d 141, 148-149 (DDC 1999).

///


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


V.

UNDER THE HEIN CASE, THE BAND IS NOT A REQUIRED PARTY IN ORDERFOR THE COURT TO HAVE JURISDICTION AND ISSUE A PROHIBITORYINJUNCTIVE ORDER REQUIRING THE ASSISTANT SECRETARY TOPRESERVE THE STATUS QUO.

Defendants argue that Plaintiffs have not suffered an injury in fact. (See Defendants’

Opposition, p. 16) Plaintiffs disagree. Plaintiffs are suffering an injury in fact in that the Assistant

Secretary and BIA has failed in their fiduciary duty to protect their status and rights as federally

enrolled tribal members. Contrary to defendant’s contention, this is a redressable through

government-to-government action. See for example, United Keetoowah Band of Cherokee Indians v.

Muskogee Area Director, 22 IBIA 75, 83 (1992) [holding approval of tribal ordinances is one aspect

of the government-to-government relationship]. As noted in Milam, supra, “Plaintiffs argue that

tribal sovereignty prohibits BIA interference with internal tribal matters.” However, in Milam, the

BIA sought only to determine, for the purpose of administering BIA affairs, the legitimate Indian

representative pursuant to its own responsibility to administer its trust duties. In order to fulfill those

duties, the Secretary was required to construe the Indian constitution, and to determine whether the

actions taken at the September meeting were valid under it.” Milam v. Dept. of the Interior, supra,

10 ILR 3013, 3015-3016.

Defendants next argue that the Band is “a necessary and indispensable party to this

litigation.” (See Defendants’ Opposition, p. 17, 18-23) Plaintiffs disagree. The Defendants, as the

moving party raising the Rule 19 issue, have “the burden of persuasion in arguing for dismissal” and

establishing that the Band is a required party. Makah Indian Tribe v. Verity, 910 F. 2d 555, 558 (9th

Cir. 1990).

Plaintiffs seek an injunctive order that would require the BIA to take all actions to preserve

the Plaintiffs’ status quo. Federal Rule 19 requires the court to balance several factors: (1) The

extent to which a judgment rendered in the party’s absence might prejudice that party or existing

parties; (2) the extent to which any prejudice could be lessened or avoided by protective provisions

in the judgment or shaping the relief or other measures; (3) whether a judgment and relief rendered


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

5 The Plaintiffs have asked the Court to stay any action on the declaratory relief cause ofaction and order that the BIA take all action necessary to preserve the status quo. (Complaint, ¶ 70.)


in the party’s absence would be adequate; and (4) whether the plaintiff would have an adequate

remedy if the action were dismissed for nonjoinder. If a required party is absent, the court must also

factor in an equitable determination: whether, in equity and good conscience, the action should

proceed among the existing parties or be dismissed. Republic of Philippines v. Pimentel, 553 U.S.

851, 862 (2008).

Plaintiffs are not currently seeking declaratory relief, only injunctive relief. The purpose of a

preliminary injunction is to preserve the relative positions of the parties until the issue is settled. See,

Stanley v. University of Southern California, 13 F.3d 1313, 1320 (9th Cir. 1994) [injunction

“prohibitory” where it “preserves the status quo.’] In this case, Plaintiffs have asked the Court to

preserve the status quo by granting injunctive relief and ordering the United States to preserve the

status quo5 until a final determination is made as to the legitimate governing documents. The

Secretary has authority to enter interim orders directing the Band to comply with its own

Constitution which requires BIA review before a final determination.

In Alto v. Salazar, United States District Court, Southern District, Case

11-cv-02276-IEG-BLM, the court ruled:

It is true that the Tribe is entitled to sovereign immunity from suit and that, had Plaintiffsbeen fully disenrolled as tribal members, the Secretary would have no further duty to them.But, that is not the case...as the Court has determined, under the Tribe’s Constitution, theMarcus Alto Sr. Descendants are still on the rolls and, therefore, are still members of theTribe. As such, the Secretary has continuing fiduciary duties and obligations to them. SeeSeminole Nation v. United States, 316 U.S. 286, 295-96 (1942). One such obligation is toprotect the individual members’ interests until this dispute is fully adjudicated. (Emphasisadded)

(See Plaintiffs’ Reply, Exhibit 7 [000066])

The Ninth Circuit has observed that “[t]here is no precise formula for determining whether

a particular non-party is necessary to an action.” Confederated Tribes of Chehalis Indian

Reservation v. Lujan, 928 F.2d 1496, 1498 (9th Cir. 1991). Rather, “‘[t]he determination is

heavily influenced by the facts and circumstances of each case.’” Id. (citation omitted).


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

6 See, Ranson v. Babbitt, supra, 69 F. Supp. 2d 141, 148 [“While the constitutionalgovernment might be affected by this Court’s review of BIA’s actions, their joinder remainsunnecessary for the Court to conduct its review”].

7 In Plaintiffs’ case, even under the contested revised July 22, 2009 enrollment ordinance No.1, there is an appeal process. Section 8 A provides 30 days to file an appeal with the PacificRegional Director who makes a “recommendation” to the EC has to whether it should uphold orchange its decision. Thus, even under the challenged ordinance, the decision is not final until afterthis process. Therefore, the enrolled Plaintiff members’ rights and benefits cannot be arbitrarilyterminated while the Plaintiffs’ appeal is pending agency review.


Under the circumstances in this case, the Band is not a required party.6 Significantly, the

decision from the Ninth Circuit in Hein v. Capitan Grande Band of Diegueno Mission, 201 F. 3d

1256 (9th Cir. 2000) is dispositive of the Rule 19 as it pertains to Plaintiffs’ action for injunctive

relief against the United States:

We reverse the district court’s decision dismissing plaintiffs’ remaining claims on appeal;those claims are brought only against the United States and the Secretary of the Interior, andthe Barona Group is not, pursuant to Rule 19, an indispensable party with respect to thesecauses of action. In particular, plaintiffs have asked the district court to compel the Secretaryof Interior to issue a ruling with respect to their tribal status and, relatedly, their rights to ashare of the proceeds of the Barona Group’s gaming operations. That cause of action, as wellas the cause of action against the Secretary and the United States for breach of trust, remainsproperly before the district court.

Id. at p. 1258, emphasis added.

The Assistant Secretary acknowledges the fiduciary duty to protect Plaintiff tribal members

because disenrollments must be conducted in a manner that provides the tribal member with due

process and ensures that member’s equal protection under the law (25 U.S.C. § 1302(a)(8). (See

Plaintiffs’ Reply Exhibit 4 [0000280) There is nothing in any of the Band’s governing documents,

contested or otherwise, which would allow the EC to terminate the Plaintiff tribal members’ rights

and benefits effective immediately.7 Therefore, Plaintiffs are being denied due process and equal

protection by being deprived of their membership rights and benefits, and an injunctive order

preserving the status quo is an appropriate remedy.

Any number of tribal members could face the arbitrary termination of their tribal membership

and benefits by the EC under the 2009 revised enrollment ordinance which was enacted pursuant to a

constitution which was never put to a vote by the whole band. Consequently, the Band itself is not


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


prejudiced by a prohibitory injunctive order which requires the Assistant Secretary to preserve the

status quo while reviewing Plaintiffs’ appeal, because the Band has an interest in ensuring its all of

its members receive due process, and that the EC is operating under governing documents that were

legitimately adopted by the Band as a whole.

In this case, there are enforcement mechanisms in place to ensure that the Band complies

with any final determination by the Secretary. First, the Band’s enrollment ordinance no. 1 provides

that the Secretary has the final and conclusive authority over all enrollment challenges. In the past,

the Band has demonstrated that it was willing to submit the enrollment challenge to the BIA and the

Secretary, and to abide by their decisions—most notably the 1985-1989 enrollment challenge,

which was resolved adversely to the Band. Thus, if the Secretary declared the revised enrollment

ordinances invalid because the EC did not have the authority under the constitution since it was

never ratified, it is presumed the Band would have to comply with that determination. See

Yellowstone County v. Pease, 96 F.3d 1169, 1173 (9th Cir. 1996) [concluding that the Tribe was not

a necessary party where it could be presumed that the tribal courts would comply with a binding

pronouncement of the federal court].

VI.

PLAINTIFFS HAVE ESTABLISHED THAT THE BALANCE OF HARDSHIPS TIPHEAVILY TOWARD GRANTING A TEMPORARY RESTRAINING ORDER INTHE PLAINTIFFS’ FAVOR.

A preliminary injunction is “an extraordinary remedy that may only be awarded upon a

clear showing that the plaintiff is entitled to such relief” and is “never awarded as of right.”

Winter v. Natural Res. Def. Council, 555 U.S. 7, 22, 24 (2008). Thus, “[a] plaintiff seeking a

preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to

suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his

favor, and that an injunction is in the public interest.” Id. at 20. As long as all four Winter factors

are addressed, an injunction may issue where there are “‘serious questions going to the merits’”

and “a balance of hardships that tips sharply towards the plaintiff.” Alliance for the Wild Rockies

v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011).


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


A. Success on the merits. As argued and demonstrated by the exhibits, there are serious

questions going to the merits of the challenged constitution. The Band publicly admits it is governed

by Articles of Association, and the BIA’s recent February 24, 2012 decision appears on its face to be

unreasonable because a “meeting” does not fulfill the “election” requirement in Article IX of the

constitution. Moreover, the Assistant Secretary has previously made a final and conclusive decision

regarding Plaintiffs’ ancestor, Margarita Britten’s blood quantum which is entitled to collateral

estoppel effect and is binding on the tribe under the Band’s government-to-government relationship.

B. Irreparable harm. Plaintiffs have provided declarations that established immediate

irreparable harm. (Complaint, Exhibit 4-B [000035-000104])

C. The injunction is in the public interest. The Band itself has a public interest in

ensuring that enrollment matters are conducted with valid governing documents, and in a fair

manner, and that tribal members rights are not terminated before a full and fair adjudication.

D. Complete relief can be granted without the Band. The governing inquiry is

whether the Band will be adequately represented by existing parties. See Southwest Ctr. for

Biological Diversity v. Babbitt, 150 F.3d 1152, 1153-1154 (9th Cir.1998). “A non-party is

adequately represented by existing parties if: (1) the interests of the existing parties are such that they

would undoubtedly make all of the non-party’s arguments; (2) the existing parties are capable of and

willing to make such arguments; and (3) the non-party would offer no necessary element to the

proceeding that existing parties would neglect.” Id.

The government has made all of the Band’s sovereignty arguments in their Opposition to the

TRO filed on March 13, 2012. Therefore, complete relief may be accorded among the parties in the

Band’s absence. Hein v. Capitan Grande Band of Diegueno Mission, supra, 201 F. 3d 1256, 1258.

The Tribe also does not have a legally protected interest that would be impaired in its absence

because “an absent party has no legally protected interest at stake in a suit merely to enforce

compliance with administrative procedures.” Cachil Dehe Band of Wintun Indians of the Colusa

Indian Community v. California, 547 F.3d 962, 971 (9th Cir. 2008); see also Makah, 910 F.2d at p.

559 (“The absent tribes would not be prejudiced because all of the tribes have an equal


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


interest in an administrative process that is lawful.”).

E. The balance tips sharply toward the Plaintiffs. “To qualify for injunctive relief,

the plaintiffs must establish that ‘the balance of equities tips in their favor.’” Stormans, Inc. v.

Selecky, 586 F.3d 1109, 1138 (9th Cir. 2009) (citation omitted). “In assessing whether the plaintiffs

have met this burden, the district court has a ‘duty ...to balance the interests of all parties and weigh

the damage to each.’” Id. (citation omitted)

Economic hardship constitutes irreparable harm: back payments cannot erase either the

experience or the entire effect of several months without food, shelter or other necessities. Economic

hardship, such as subsistence on General Assistance and food stamps, lack of medical insurance, and

homelessness supports a finding of irreparable harm. Kildare v. Saenz, 325 F. 3d 1078, 1083 (9th

Cir. 2003). Likewise, the loss of one’s job and job benefits does not carry merely monetary

consequences; it carries emotional damages and stress, which cannot be compensated by mere back

payment of wages. Collins v. Brewer, 727 F. Supp. 2d 797 812 (D. Ariz. 2010), aff’d sub nom. Diaz

v. Brewer, 656 F.3d 1008 (9th Cir. 2011); see also Indep. Living Ctr. of Southern Cal, Inc. v.

Maxwell-Jolly, 572 F.3d 644, 657-658 (9th Cir. 2009) (holding that state Medicaid beneficiaries

were likely to be irreparably harmed by a reduction in their benefits), cert. granted in part, 131 S. Ct.

992 (2011); Beltran v. Myers, 677 F.2d 1317, 1322 (9th Cir. 1982) (holding that a denial of needed

medical care creates a risk of irreparable injury).

Although the issuance of the temporary restraining order and preliminary injunction might

interfere with the Band’s sovereignty, as previously indicated, this interference is expressly provided

for in the Band’s original enrollment ordinance which Plainiffs allege governs and is pursuant to the

APA. Accordingly, the balance of hardships tips heavily in Plaintiffs’ favor. See Lopez v. Heckler,

713 F.3d 1432, 1437 (9th Cir. 1983) (“Faced with such a conflict between financial concerns and

preventable human suffering, we have little difficulty concluding that the balance of hardships tips

decidedly in plaintiffs’ favor.”).

F. Waiver of the bond. Waiver of the bond requirement is permissible

where the plaintiffs are indigent. See V.L. v. Wagner, 669 F. Supp. 2d 1106, 1123 (N.D. Cal.


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


2009); Orantes-Hernandez v. Smith, 541 F. Supp. 351, 385 n.42 (C.D. Cal. 1982). Moreover, in this

case the cost to the government and the Band, in the event they are found to have been wrongfully

enjoined, would be minimal because there is nothing in any of the Band’s governing documents,

contested or otherwise, which would allow the EC to terminate the Plaintiff tribal members’ rights

and benefits effective immediately. Plaintiffs are indigent and many are women with minor children.

Accordingly, the Court has discretion to waive the bond requirement in this case. See Fed. R. Civ. P.

65(c).

CONCLUSION

In the time it took the United States to oppose Plaintiffs’ motion, they could have resolved

the issue and crafted an order to restore the Plaintiffs’ status quo. Instead, the government chose to

shirk its fiduciary duty and turn a blind eye to the EC’s actions that violate Plaintiffs’ civil rights and

are impacting Indian families. Plaintiffs have demonstrated that they are presently suffering extreme

hardships; that they have exhausted administrative review of their request to preserve the status quo

with the Assistant Secretary, and therefore, prohibitory injunctive relief requiring the Assistant

Secretary to take all necessary action to preserve the Plaintiffs’ status quo is appropriate under the

circumstances.

Consequently, Plaintiffs ask this Court to grant Plaintiffs’ request for a temporary/preliminary

restraining order and require the BIA to take all action necessary to preserve the status quo.

DATED: March 14, 2011 LAW OFFICES OF THOR O. EMBLEM

s/ Thor O. Emblem Attorney for PlaintiffsE-mail: [email protected]


Thor O. Emblem CSBN 141880 Tracy L. Emblem CSBN 145484 2 ... · Marlyn Nutraceuticals, Inc. v....

Documents

Transcript of Thor O. Emblem CSBN 141880 Tracy L. Emblem CSBN 145484 2 ... · Marlyn Nutraceuticals, Inc. v....