UNITED STATES DISTRICT COURT FOR THE WESTERN...

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

MARQUITA CARATTINI, et al., )

) Case No.: 5:09-cv-00489-D Plaintiffs, )

v. ) KEN SALAZAR, et al., ) ) Defendants. )

PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION TO AFFIRM AND CROSS-MOTION FOR SUMMARY JUDGMENT

By: Doerner, Saunders, Daniel & Anderson, L.L.P. David McCullough,

OBA No. 10898 201 Robert S. Kerr Avenue Suite 700 Oklahoma City, OK 73102 Telephone: (405) 319-3501 Facsimile: (405) 319-3531 [email protected]

Case 5:09-cv-00489-D Document 28 Filed 08/07/09 of 25

mailto:[email protected]

TABLE OF CONTENTS

INTRODUCTION .......................................................................................................................... 1

ARGUMENT AND AUTHORITIES............................................................................................. 2

I. The District Court has jurisdiction under 28 U.S.C. 1331 to review a challenge to federal agency actions brought under the APA. ................................................................. 3

A. Plaintiffs have standing to bring this suit because Carattini and Banderas have “suffered” an “injury in fact” that is “fairly traceable” to the actions of the Defendants, and the injury will likely be redressed by a favorable decision.......... 3

B. The District Court has jurisdiction under the APA to Resolve the Issues Necessary to Resolve the Counts of Plaintiffs’ Complaint and to Grant the Relief Requested................................................................................................................ 9

II. Plaintiffs have Conclusively Established that Defendants Actions Should be Reversed Consistent with the Administrative Procedures Act ......................................... 14

A. DOI’s recognition of Carattini and Banderas’ removal is clearly arbitrary and capricious, not supported by Defendants’ legal analysis or the facts in the administrative record ............................................................................................ 14

B. Defendants’ determination that the special election was validly called was arbitrary and capricious......................................................................................... 19

CONCLUSION............................................................................................................................. 20

CERTIFICATE OF SERVICE ..................................................................................................... 21

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TABLE OF AUTHORITIES

Page(s)

Federal Cases

Action Wholesale v. Oklahoma Alcoholic Bev. Laws, 436 F.Supp.2d 1197 (W.D. Okla., 2006)…………………………………………………………………….3

Ash Creek Mining Co. v. Lujan, 969 F.2d 868, 875 (10th Cir.1992)………………….7

Bennett v. Spear, 520 U.S. 154, 162 (1997)………………………………………...…3

Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977)…….....10

Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971)………………8

Goodface v. Grassrope, 708 F.2d 335 (8th Cir.1983)……………………………10, 12

Habecker v. Town of Estes Park, Colo., 518 F.3d 1217 (10th Cir. 2008)…………..6, 7

Larson v. Valente, 456 U.S. 228, 243 n. 15, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982)….8

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)…………………………………………………………………...4, 6

Pennaco Energy, Inc. v. U.S. Dep't of Interior, 377 F.3d 1147, 1156 (10th Cir. 2004).8

Petroleum Communication, Inc. v. F.C.C., 22 F. 3d 1164, 1172 (D.C. Cir. 1994)8, 14, 17, 18

Ransom v. Babbitt, 69 F. Supp.2d 141, 148 (D.D.C. 1999)…………………………...8

Runs After v. United States, 766 F.2d 347, 351 (8th Cir.1985)…………………..10, 12

Rutan v. Republican Party, 497 U.S. 62, 77-78, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990)…………………………………………………………………………..6

Sac & Fox Tribe of Miss. v. Bureau of Ind. Affairs, 321 F. Supp.2d 1055, 1063 (N.D. Iowa 2004)………………………………………………………………...10, 11

Sac & Fox Tribe of Miss. v. Bureau of Indian Affs., 360 F.Supp.2d 986, 994 (N.D. Iowa 2005)…………………………………………………………………….12

State Cases

Wopsock v. Natchees, No. Civ. 204CV00675TX, 2005 WL 1503425 (D. Utah June 21, 2005)………………………………………………………………………12

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Federal Statutes

28 U.S.C. § 1331…………………………………………………………………11, 12

28 U.S.C. 1331………………………………………………………………………...3

28 U.S.C. Sec. 1331………………………………………………………………….14

5 U.S.C. Sec. 706(2)(A)……………………………………………………………...14

Other Authorities

Milam v. United States Dep't of the Interior, 10 ILR 3013…………………………..13

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UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

MARQUITA CARATTINI, et al., )

) Case No.: 5:09-cv-00489-D Plaintiffs, )

v. ) KEN SALAZAR, et al., ) ) Defendants. )

PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION TO AFFIRM AND CROSS-MOTION FOR SUMMARY JUDGMENT

Consistent with LCvR7.1(g) and (i), and pursuant to this Court’s Scheduling Order

as last amended on July 28, 2009, Plaintiffs herein respond to Defendants’ Motion to

Affirm or, in the Alternative, Cross-Motion for Summary Judgment and supporting

memorandum (hereinafter “Defendants’ Brief”).

INTRODUCTION

Plaintiffs Marquita Carattini, Richard Banderas and Ron Ahtone filed a Motion for

Summary Judgment against the Defendants Ken Salazar, Larry Echohawk and the United

States Department of the Interior (collectively “DOI”) alleging the DOI acted arbitrarily

and capriciously in: (1) determining Carattini and Banderas were properly removed from

the Business Committee of the Apache Tribe of Oklahoma (“ABC”), (2) determining the

election to fill their positions on the ABC had been properly conducted under the

Constitution, and (3) refusing to consult with Plaintiffs prior to issuing its final decision,

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and that the January 29, 2009 final agency decision is contrary to the Apache

Constitution and without any proper support in the Administration Record.

Defendants claim, Carattini and Banderas were properly removed from the ABC

Business Committee, and support this claim on the basis of having purportedly conducted

an analysis of the numerous provisions of the Apache Tribe of Oklahoma Constitution

and concluded that the facts, as interpreted by Defendants, supported the decision

expressed in Defendants’ final agency action. Plaintiffs’ contend that Defendants

decision reflected in the final agency action, coupled with the Administrative Record

upon which the decision must be based, does not support Defendants’ finding that “notice

provide (sic) was sufficient to satisfy due-process requirements, and/or was sufficient to

provide notice-in-fact to Carattini and Banderas, such that neither can claim to have

missed any of the meetings due to lack of knowledge as to the time and place they were

to be held.” The Record does not support this conclusion and Defendants’ decision is

arbitrary, capricious and an abuse of discretion. Therefore, this Court should enter

judgment that Defendants violated their obligations under the Administrative Procedures

Act.

ARGUMENT AND AUTHORITIES In Defendants’ Brief, Defendants assert that the issues raised in Plaintiffs’

Complaint are beyond the subject matter of this Court and, if the Court does have

jurisdiction, then Plaintiffs failed to establish any violations of the Administrative

Procedures Act (“APA”). Hereafter, Plaintiffs respond to both issues raised by

Defendants.

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I. The District Court has jurisdiction under 28 U.S.C. 1331 to review a challenge to federal agency actions brought under the APA.

In their challenge to the Court’s subject matter jurisdiction, Defendants assert that

(1) Plaintiffs do not have standing to bring the action and (2) Plaintiffs’ claim involves an

intra-tribal dispute requiring interpretation of tribal constitution and law which is not

within the jurisdiction of the Court. As Plaintiffs will show this Court, Defendants’

arguments are not supported by the law and facts of this case and, as a matter of fact, the

very cases cited by Defendants in support of their proposition support this Court’s

jurisdiction over Plaintiffs’ claims.

A. Plaintiffs have standing to bring this suit because Carattini and Banderas have “suffered” an “injury in fact” that is “fairly traceable” to the actions of the Defendants, and the injury will likely be redressed by a favorable decision.1

Defendants have challenged this Court’s subject matter jurisdiction based upon

Plaintiffs’ alleged lack of standing to bring this action. In Action Wholesale v. Oklahoma

Alcoholic Bev. Laws, 436 F.Supp.2d 1197 (W.D. Okla., 2006), the Court set forth the

elements a plaintiff must plead to meet Article III of the United States Constitution

conferring jurisdiction on federal courts to hear a dispute. The Court stated:

“First, the plaintiff must have suffered an injury in fact—an invasion of a

legally protected interest which is (a) concrete and particularized, and (b) actual or

imminent; not conjectural or hypothetical. Second, there must be a causal connection

between the injury and the conduct complained of—the injury has to be fairly traceable to

1 The italicized language is taken directly from Defendant’s Brief (p.5), citing Bennett v. Spear, 520 U.S. 154, 162 (1997).

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the challenged action of the defendant, and not the result of the independent action, of

some third party not before the court. Third, it must be likely, as opposed to merely

speculative, that the injury will be redressed by a favorable decision. [citing Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).”

As will be demonstrated hereafter, Plaintiffs have suffered injury in fact, the injury

is directly related to Defendants’ conduct and the injury can be redressed by a favorable

decision.

Introduction

On May 10, 2008, Plaintiffs Carattini and Banderas were elected to the Business

Committee of the Apache Tribe of Oklahoma (“ABC”). Defendants’ Brief, p. 3, ¶ 3. In

July and August, 2008, the ABC Chairman called six special meetings. Defendants’

Brief, p. 3, ¶ 6.2 On August 14, 2008, after the sixth allegedly called meeting, Carattini

and Banderas were notified that they were no longer on ABC members because they had

missed three consecutive meetings. Defendants’ Brief, p. 3, ¶ 8. On September 10, 2008,

the Southern Plains Regional Office (“SPRO”) issued a “Press Release” stating that the

BIA “continues to recognize Chalepah, Rivera, Carattini, Ahtone, and Banderas as

comprising the Apache Business Committee.” Plaintiffs’ Brief, p. 7, ¶ 33.

In October 2008, an election was conducted to replace Carattini and Banderas.

Defendants’ Brief, p. 4, ¶ 9. On October 20, 2008, the SPRO received a “Certification”

2 Defendants’ Uncontroverted Fact states that six meetings were called. Plaintiffs have refuted that they received notice of all the meetings if they were called. See Plaintiffs’ Brief in Support of Motion for Summary Judgment (Dck. # 21), pp. 14-16 (“Plaintiffs’ Brief”).

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of the winners in the uncontested election held on October 18th. Plaintiffs’ Brief, p. 7, ¶

37. On October 22, 2008, the SPRO issued a letter stating the ABC was comprised of the

five individuals who were elected and sworn into office on May 15, 2008. Plaintiffs’

Brief, p. 7, ¶ 38.

On December 19, 2008, DOI directed the SPRO to make no more decisions

concerning the make-up of the ABC and directed SPRO to send all records pertaining to

all Apache Tribe internal disputes to Washington, D.C. where DOI would make its own

decision as to who composed the ABC. Plaintiffs’ Brief, p. 7, ¶ 39. Defendants further

stated in the December 19th letter that “[a] prompt final agency decision that would be

subject to judicial review is important because both tribal and federal operations are

significantly impaired by the uncertainty as to who may represent the Tribe in its

government-to-government relations with the United States pending a resolution of these

disputes.” (Administrative Record Doc. 136) (“AR ___”).

On January 29, 2009, DOI issued its decision (“DOI Final Decision”). The DOI

held that (1) Carattini and Banderas had been properly removed for failing to attend the

called “meetings” and (2) the election to replace Carattini and Banderas was conducted

consistent with the Apache Constitution. The DOI Final Decision stated that it was “final

for the Department”. Plaintiffs’ Brief, p. 7, ¶ 40.

The DOI Final Decision reversed the SPRO’s consistent position that the ABC

was comprised of the five individuals sworn into office on May 15, 2008. The results of

the DOI Final Decision was that Carattini and Banderas were no longer recognized by the

BIA as elected officials of the Apache Tribe.

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1. Plaintiffs Carattini and Banderas have suffered an injury in fact. Plaintiffs

Carattini and Banderas were elected members of the ABC. Up until the day the DOI

Final Decision was issued, Plaintiffs were recognized by the Apache Tribe as the elected

members of the ABC.3 Loss of elected office meets the injury in fact requirement. As

the Tenth Circuit Court of Appeals stated in Habecker v. Town of Estes Park, Colo., 518

F.3d 1217 (10th Cir. 2008):

“Without a doubt, this alleged injury constitutes an injury in fact. His removal

from office is a concrete and particularized harm, in that he is no longer able to enjoy the

benefits of his former position. See Lujan, 504 U.S. at 561 n. 1, 112 S.Ct. 2130; see also

Rutan v. Republican Party, 497 U.S. 62, 77-78, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990)

(recognizing the loss of public employment as an injury in fact). Additionally, his loss of

office is an "actual" injury, in that it has already occurred, and he is no longer serving as a

Trustee.”

Plaintiffs Carattini and Banderas were removed from office by Defendants’

actions. This clearly constitutes injury in fact.

2. Defendants’ actions were the causation of Plaintiffs Carattini and Banderas

injuries. To demonstrate causation, a plaintiff “must show that his injury is "fairly

traceable" to the defendants' actions. Lujan, 504 U.S. at 560, 112 S.Ct. 2130. . . . 3 The Chairman, not the Business Committee, declared that Carattini and Banderas were not members of the Business Committee. See Defendants’ Brief, p. 3, ¶ 8. Thus, no action was taken by either the ABC or the Tribal Council to not recognize Carattini and Banderas as ABC members. The SPRO recognized Plaintiffs as ABC members. See Plaintiffs’ Brief, pp. 6-8, ¶ ¶ 19, 33, 34, and 38. The SPRO did not recognize the ABC Chairman and Vice-Chairman as having the authority to conduct business without Plaintiffs present because no quorum was present. See AR 87.

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Although the "traceability" of a plaintiff's harm to the defendant's actions need not rise to

the level of proximate causation, Article III does "require proof of a substantial likelihood

that the defendant's conduct caused plaintiff's injury in fact." Habecker 518 F.3d at

1225.

But for the DOI Final Decision, Plaintiffs Carattini and Banderas would still be

recognized as the elected members of the ABC. See fn 3, supra. Plaintiffs have met the

burden of “traceability” of the injury to the actions of Defendants for purposes of

standing.

3. Plaintiffs Carattini and Banderas injury can be redressed by a favorable

decision from this Court. In the DOI Final Decision, Defendants found that (1) the

administrative record reflected that sufficient notice-in-fact was given to Carattini and

Banderas to satisfy due process requirements under federal and/or tribal law to support

their removal from office; (2) the “call [of] a meeting” constituted a “meeting” under the

language in the Apache Tribe Constitution; and (3) the only inference that could be

drawn from Carattini and Banderas missing the meetings was that Carattini and Banderas

“boycotted” the meetings. Based upon these factual and legal findings, Defendants held

that Plaintiffs Carattini and Banderas should no longer be recognized as ABC members.

As supported in the Statement of Uncontroverted Facts in Plaintiffs’ Brief,

Plaintiff has demonstrated “a substantial likelihood that the relief requested will redress

its injury in fact.” Ash Creek Mining Co. v. Lujan, 969 F.2d 868, 875 (10th Cir.1992).

See also Larson v. Valente, 456 U.S. 228, 243 n. 15, 102 S.Ct. 1673, 72 L.Ed.2d 33

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(1982) (“The plaintiff must show that a favorable judgment will relieve a discrete injury,

although it need not relieve his or her every injury.”)

Under the APA, this Court has the authority to review a final agency action and

set aside if it is “arbitrary, capricious, otherwise not in accordance with law, or not

supported by substantial evidence.” Citizens to Preserve Overton Park v. Volpe, 401

U.S. 402, 416 (1971); See also Pennaco Energy, Inc. v. U.S. Dep’t of Interior, 377 F.3d

1147, 1156 (10 Cir. 2004)th . “[W]here the agency has failed to provide a reasonable

explanation, or where the record belies the agency’s conclusion, we must undo its

action”. Petroleum Communication, Inc. v. F.C.C., 22 F. 3d 1164, 1172 (D.C. Cir. 1994).

Plaintiffs have requested this Court to undo the Defendants’ actions. Should the Court

grant Plaintiffs’ request, then Plaintiffs would be restored to their rightful positions on the

ABC.4

4 Defendants assert that “relief and standing are also problematic because the Tribe is not a party to this action.” Defendants’ Brief, p. 7, fn. 3. As Plaintiffs have asserted numerous times, this action arises from the January 29, 2009 decision of the Department of the Interior wherein the DOI determined who was and who was not a member of the tribe, who was and who was not a member of the Business Committee, and whether a special election was validly held. In Ransom v. Babbitt, 69 F. Supp.2d 141, 148 (D.D.C. 1999), the court determined that “[i]n cases where plaintiffs have challenged the propriety of decision-making by federal administrative agencies, courts frequently have concluded that states and municipalities affected by that decision-making are not indispensable parties” [citation omitted] The Court concluded that “[w]hile the [Tribal] Constitutional Government might be affected by this Court’s review of BIA’s actions, their joinder remains unnecessary for the Court to conduct its review. [citation omitted] Further whatever interests the Constitutional Government might have in this case will find adequate representation by Defendants [BIA].”

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B. The District Court has jurisdiction under the APA to Resolve the Issues Necessary to Resolve the Counts of Plaintiffs’ Complaint and to Grant the Relief Requested

Defendants state that “[t]his Court does not have jurisdiction to resolve issues of

tribal law. Any relief dependent upon tribal law adjudication is outside the jurisdiction of

the Court. [footnote omitted] This Court also lacks jurisdiction to determine the makeup

of the Tribe’s governing.” Defendants’ Brief, pp. 6-7 Defendants have erected a straw

man argument with their assertion that this is an intra-tribal dispute. Plaintiffs are not

asking this Court to resolve an intra-tribal dispute. Plaintiffs have petitioned this Court to

review, under the APA, the DOI Final Decision in which Defendants found that:

• Plaintiffs received notice-in-fact sufficient to have caused them to forfeit

their offices under Article VI, section 4 and Article XII of the Constitution

of the Apache Tribe of Oklahoma. AR 144, p. 5.

• The call of a special meeting under Article VI, section 4 of the Constitution

by the Chairman constituted a “meeting” which resulted in forfeiture of

office under Article XIII. and there was no requirement that a quorum be

present, as required under Article XV, section 2 of the Constitution. AR

144, p. 5.

• The only inference that could be drawn from the record for Carattini and

Banderas missing the meetings was that they boycotted said meetings,

without giving consideration to the fact Article XIII of the Constitution

provides that the Business Committee (presumably a quorum of the

Business Committee as defined under Article XV, section 2 of the

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Constitution) can excuse any person from attending said meetings which is

supported in the record. AR 144, p. 5.

• The special election challenged by Plaintiffs “was [not] conducted in a

manner that directly violated the plain language of the Tribe’s

Constitution. AR 144, p. 5.

This Court has jurisdiction to review Defendants’ final agency action, including

the correctness of Defendants’ interpretation of Tribal Constitution and laws.

Defendants’ argue that this Court cannot review Defendants’ final action because to do so

would infringe upon tribal sovereignty. However, Defendants engaged in a review of the

laws and Constitution of the Apache Tribe to render their decision. Interestingly,

Defendants do not dispute their own jurisdiction to construe tribal law to reach a

decision in the first instance; they merely dispute this Court’s authority to review that

decision because the Court would have to review Defendants application of the facts to

the law and Constitution of the Tribe. Defendants’ position is not supported in the law.

"Although the APA may not be used as an independent grant of subject matter jurisdiction to review agency actions, the Supreme Court stated in Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977), that 28 U.S.C. § 1331 confers general jurisdiction on federal courts to review federal agency actions `subject only to preclusion-of-review statutes.'" Goodface v. Grassrope, 708 F.2d 335 (8th Cir.1983). See also Runs After v. United States, 766 F.2d 347, 351 (8th Cir.1985) (noting that federal courts have subject matter jurisdiction under 28 U.S.C. § 1331 to review, pursuant to the APA, action by the BIA). In this case, the court has jurisdiction under 28 U.S.C. § 1331 to review, pursuant to the APA, the action taken by the BIA.

Sac & Fox Tribe of Miss. v. Bureau of Ind. Affairs, 321 F. Supp.2d 1055, 1063 (N.D.

Iowa 2004). “While respecting tribal sovereignty, the BIA must sometimes interpret

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tribal law if doing so will affect federal-tribal relations. [citations omitted]” Ransom, 69

F. Supp.2d at 150-51 (D.D.C. 1999). These interpretations, once expressed in opinions

constituting final agency action, are reviewable under the APA. None of the cases relied

upon by Defendants support their proposition that this Court does not have jurisdiction to

review Defendants’ actions under the APA. In fact, most of the cases cited by

Defendants support this Court’s jurisdiction under the APA. A review of a few of those

cited cases follows:

a. Wopsock v. Natchees, No. Civ. 204CV00675TX, 2005 WL 1503425

(D. Utah June 21, 2005). This unreported case is the main case relied upon by

Defendants for the proposition that this Court does not have jurisdiction. Yet the

Court in Wopsock found that “Plaintiffs have not yet exhausted their federal

remedies nor obtained final agency action, as required . . . for judicial review of

any agency action under any Administrative Procedure Act (APA) claim.” Id. at

*4. Further, the Wopsock court rejected a case Plaintiffs had offered in support of

their jurisdictional claim and found as distinguishing the fact that the cited case

“was an appeal from final agency action whereas this case is not.” Id. at *2.

b. Sac & Fox Tribe, 321 F. Supp.2d at 1063. The Court found that the

Sac & Fox Tribe of Mississippi Election Board could pursue an APA action

against the BIA. The Court later dismissed the Election Board’s complaint.

Defendants assert this Court is faced with the “same conundrum”. Defendants

misread the Court’s subsequent action in dismissing the complaint. In Sac & Fox

Tribe of Miss. v. Bureau of Indian Affs., 360 F.Supp.2d 986, 994 (N.D. Iowa

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2005), the Court dismissed the complaint without prejudice so that the tribal court

could determine whether the Election Board had the authority under the tribal

Constitution to file suit on behalf of the Tribe. This was a dismissal on the issue

of standing—not on a determination that the court did not have jurisdiction

underAPA to consider the Election Board’s claim.

c. Goodface v. Grassrope, 708 F.2d 335 (8th Cir. 1983). This case

dealt with an election dispute. The District Court had found under the APA that

the BIA had acted arbitrarily and capriciously in recognizing two competing tribal

councils and ordered the BIA to recognize only one Council as the governing

body. The Court of Appeals held the District Court had jurisdiction under the

APA but reversed the District Court to the extent that it ordered the BIA to

recognize one specific council, saying that it was the duty of the BIA to determine

which of the two Councils it would recognize. The Appeals Court found that the

District Court had incorrectly relied upon Milam v. United States Dep’t of the

Interior, 10 ILR 3013 in determining that it had jurisdiction because “in Milam no

tribal remedies existed” whereas in Goodface “unexhausted tribal remedies

remained available.” Goodface, 708 F. 2d at 339. There is no assertion by any

party to this litigation that any other remedies are available. In fact, Defendants in

this case clearly stated they intended to reach “[a] prompt final agency decision

that would be subject to judicial review.” AR 136.

d. Runs After v. U.S., 766 F.2d 347 (8th Cir. 1985). In this case, the

Court of Appeals determined that “the district court could review the agency

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action under the arbitrary or capricious standard enunciated in 5 U.S.C. Sec.

706(2)(A)” but that “appellants have not yet exhausted administrative remedies.”

The Court stated further that “the district court acted within its discretion in

requiring appellants to exhaust administrative remedies.” Again, Defendants

entered “[a] prompt final agency decision that would be subject to judicial

review.” AR 136.

This Court has not been asked to resolve an intra-tribal dispute but rather

has been asked to review the final agency action of Defendants. As the Court

stated in Goodface, 706 F. 2d at 339, “[i]f the only parties to this action were the

1980 and 1982 councils and the only question presented was one of interpreting

the tribal constitution and bylaws, we doubt whether a federal court would have

jurisdiction. [footnote omitted] However, the 1982 council named various BIA

officials as defendants in addition to the 1980 council members. We hold that the

district court did have jurisdiction under 28 U.S.C. Sec. 1331 to review, pursuant

to the APA, the action taken by the BIA in refusing to recognize either tribal

council.”

Plaintiffs brought this action against various DOI officials seeking review

of the DOI Final Decision. Despite Defendants assertion to the contrary, it is clear

this Court has jurisdiction to review Defendants’ actions.

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II. Plaintiffs have Conclusively Established that Defendants Actions Should be Reversed Consistent with the Administrative Procedures Act

Plaintiffs have clearly shown that Defendants decisions were arbitrary and

capricious. Defendants’ analysis of the Apache Tribe Constitution and applying the facts

in the administrative record to its analysis has resulted in decisions that are clearly

arbitrary and capricious.

A. DOI’s recognition of Carattini and Banderas’ removal is clearly arbitrary and capricious, not supported by Defendants’ legal analysis or the facts in the administrative record

“[W]here the agency has failed to provide a reasonable explanation, or where the

record belies the agency’s conclusion, we must undo its action”. Petroleum

Communication, Inc. v. F.C.C., 22 F. 3d 1164, 1172 (D.C. Cir. 1994). In the present

case, the record does not support Defendants’ conclusions and this Court “must undo” the

action of Defendants by entering summary judgment in favor of the Plaintiffs.

1. The record does not support Defendants’ conclusion that Carattini and

Banderas missed three consecutive meetings. Defendants’ rely entirely upon their

interpretation of the Constitution that to conclude that Carattini and Banderas missed

three consecutive meetings. Plaintiffs have previously articulated why Defendants’

interpretation of the Constitution is incorrect [See Plaintiffs’ Brief, pp. 19-21] and

incorporate that argument herein.

However, Plaintiffs do assert that Defendants’ own statement of the record facts

set forth in the bullets on pages 12-13 of Defendant’s Brief support Plaintiffs contention

that the administrative record does not support Carattini and Banderas missed three

14




consecutive meeting—even accepting the Defendants’ definition of “meeting”. In

support of this, Plaintiffs respond to each bullet point.

• July 8 meeting: “Carattini and Banderas “showed up” but “did not stay”

for the meeting.” Defendants’ Brief, p. 12. As Defendants’ assert, a

meeting does not require a quorum to transact business. The record states

Plaintiffs “showed up”, therefore they did not miss the “meeting” they just

elected to not form a quorum to transact business. The July 8th meeting

therefore cannot be counted as missed.

• July 10 meeting: “Carattini and Banderas were marked as absent.”

Defendants’ Brief, p. 12. The record supports one meeting missed. The

record contains no reason why the meeting was missed.

• July 14 meeting: “DOI did not address this meeting in its Decision

Letter.” Defendants’ Brief, p. 12. Then it cannot form a basis for

Defendants’ conclusion that three consecutive meetings were missed.

• July 30 meeting: “The meeting’s minutes do not reflect Carattini and

Banderas’s presence or absence.” Defendants’ Brief, p. 12-13. Defendants

conclude that because the minutes reflect three persons present and

subsequent minutes note Carattini and Banderas have not been coming to

meetings “suggest[] they were consistently absent from preceding

meetings”. As argued in Plaintiffs’ Brief, pp. 15-19, the fact that Carattini

and Banderas were not marked present or absent was because the Chairman

and Vice-Chairman no longer considered them part of the ABC.

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• July 31 meeting: “Carattini and Banderas are specifically noted as having

failed to “come in for meetings,” and are not identified as present.”

Defendants’ Brief, p. 13. See Plaintiffs’ response to July 30th meeting

above.

• August 1 meeting: “The meeting’s minutes do not reflect Carattini or

Banderas’s presence or absence.” Defendants’ Brief, p. 13. See Plaintiffs’

response to July 30th meeting above.

How does one miss a meeting and what must the record of that meeting contain to

support the contention that the meeting was missed? There is certainly no logic or

consistency in Defendants’ answers.

As for the July 8, 10 and 14 meetings, the record reflects that notice was generated

for each meeting and the minutes reflect that Carattini and Banderas were absent.

Defendants admit that Carattini and Banderas were present at the July 8 “meeting” but

did not stay for the entire meeting. The July 8th meeting cannot be counted as missed for

purposes of the Article XIII requirement that no person can miss three consecutive

meetings. The July 14th meeting was “not addressed” by Defendants “in [their] Decision

Letter. Therefore it cannot be relied upon by Defendants to support their conclusion that

Carattini and Banderas missed three consecutive meetings.

As for the July 30, 31 and August 1 meetings, Defendants admit that no notice was

generated for any meeting and that the minutes do not reflect that Carattini and Banderas

were marked absent. In the DOI Final Decision, Defendants considered whether they

could sua sponte proceed to remove Plaintiff Ahtone from the ABC for missing three

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meetings. See AR 144, p. 5. However, Defendants concluded they could not effect that

removal because “[n]othing in the record suggests that Mr. Ahtone was provided notice

of the special meetings, nor that he had notice-in-fact of such meetings.” Id. Nothing in

the record suggests that Carattini and Banderas was provided notice or notice-in-fact of

these three meetings. Therefore, Defendants abused their discretion and acted arbitrarily

in concluding that Carattini and Banderas missed three consecutive meetings and were

thus properly removed from the ABC.

2. Plaintiffs did excuse each other from attending any called ABC meeting

wherein the Chairman did not give notice to Plaintiff Ahtone. If Plaintiffs understand

Defendants’ argument on this issue, Plaintiffs can be removed from office for missing a

“meeting” that does not require a quorum but a quorum of the Business Committee must

conduct a meeting in order to excuse themselves from the meeting. Of course, this would

have been possible if the Chairman and Vice-Chairman had not violated the laws and

constitution of the Apache Tribe of Oklahoma—as Defendants have found that they

absolutely did—and (i) declared Ahtone to not be a member of the ABC, (ii) appointed a

person in Ahtone’s place, and (iii) proceeded to declare that they constituted a quorum of

the ABC thereby denying Carattini, Banderas and Ahtone their Constitutional Right to

form a quorum of the ABC for all meetings, including the right to excuse themselves

(under Defendants’ analysis).

If Defendants want to “suppose” something from the record, it is that the quorum

of the ABC in their last official act—before the Chairman, Vice-Chairman and their

unlawfully appointed minion disregarded, unconstitutionally so, the will of the peoples of

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the Apache Tribe of Oklahoma—declared to the Chairman and Vice-Chairman that they

would not participate in any meeting called by the Chairman in which Plaintiff Ahtone

was not recognized as a member of the ABC. That is what the record reflects.

Defendants admit this. Plaintiffs, as a quorum of the ABC, did excuse themselves from

attending any of these unlawful meetings. See Plaintiffs’ Brief, pp. 21-24.

3. The Administrative Record does not support Defendants’ conclusion that

notice of each hearing was provided to Carattini and Banderas. As stated previously, in

the DOI Final Decision, Defendants considered whether they could sua sponte proceed

to remove Plaintiff Ahtone from the ABC for missing three meetings. See AR 144, p. 5.

However, Defendants concluded they could not effect that removal because “[n]othing in

the record suggests that Mr. Ahtone was provided notice of the special meetings, nor that

he had notice-in-fact of such meetings.” Id. Yet, Defendants reached the conclusion that

Carattini and Banderas had missed those meetings even though they admit the

administrative record contains no notice of meeting for the July 30, 31 and August 1

meetings. Defendants claim to find notice because the July 30 and 31 meeting minutes

state Carattini and Banderas have “failed to “come in for meetings””. See Defendants’

Brief, p. 13.

Defendants have reached a decision that undermines the will of the Apache

peoples as expressed in the May 2008 election and bases that decision on gratuitous

statements contained in minutes of “meetings” that the SPRO held were not even valid

meetings. See AR 87 (“Leonard Chalepah (appointed minion) is not a recognized

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member of the Apache Business Committee, and therefore the minutes and resolutions

are not valid”) (emphasis added).

For the reasons set forth herein, as well as within Plaintiffs’ Brief, Defendants

abused their discretion and acted arbitrarily in concluding that Carattini and Banderas

received notice of the meetings allegedly missed.

4. Defendants breached their duty to consult with Plaintiffs prior to reaching

their decision. Plaintiffs incorporate their arguments in Plaintiffs’ Brief, pp. 26-28 in

reply to Defendants’ Brief, p. 19-21. Plaintiffs only address Defendants statement that

“plaintiffs and DOI officials traded numerous letters stemming from this dispute before

DOI issued its Decision.” Defendants’ Brief, p. 20. Defendants then proceed to identify

12 record documents to support this position. Of the 12 records, six (79, 80, 83, 95, 107,

129) relate to the recall of the Chairman and Vice-Chairman, one (72) requests that the

Anadarko Agency quit interfering in tribal affairs, one (75) relates to the disenrollment of

Plaintiff Ahtone, one (106) is the October 22 letter from SPRO recognizing Plaintiffs as

being on the ABC, one (128) is Plaintiffs’ request for a meeting with the DOI to discuss

the composition of the ABC and two (139, 143) are requests for consultation. These are

hardly support for a claim that the Defendants conducted “a meaningful review” of the

administrative record and facts in the case.

B. Defendants’ determination that the special election was validly called was arbitrary and capricious.

Plaintiffs incorporate their argument in Plaintiffs’ Brief, p. 26 as their reply to

Defendants’ Brief, pp. 21-22.

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CONCLUSION

This Court has jurisdiction over Plaintiffs’ claims. For the reasons set forth in this

brief as well as in Plaintiffs’ Brief in Support of Motion for Summary Judgment (Dck. 21)

this Court should enter judgment on behalf of Plaintiffs and should deny Defendants’

motion for summary judgment.

Respectfully submitted,

s/ David McCullough_______________ David McCullough Doerner Saunders Daniel & Anderson 201 Robert S. Kerr Ave. Ste. 700 Oklahoma City, OK 73102 Telephone: (405) 319-3501 Facsimile: (405) 319-3531 [email protected] ATTORNEYS FOR PLAINTIFFS


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CERTIFICATE OF SERVICECERTIFICATE OF SERVICE I hereby certify that on the 7th day of August, 2009, I electronically transmitted the foregoing document to the Clerk of Court using the ECF System for filing and transmittal of a Notice of Electronic Filing to the following ECF registrants: Ty Bair (Idaho Bar No.7973) U.S. Department of Justice Environment and Natural Resources Division Natural Resources Section P.O. Box 663 Washington, D.C. 20044-0663 Telephone: (202) 307-3316 Facsimile: (202) 305-0506 [email protected] and served on the same day by U.S. mail, postage prepaid to: James W. Porter Office of the Solicitor United States Department of the Interior Washington, D.C. 20240 s/ David McCullough_______________

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1455218.

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