Agua Caliente Cupeno v Washburn JSR

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Agua Caliente Tribe v. Washburn, No. 2:15-cv-02329-GEB-KJNParties Joint Status Report

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JOHN C. CRUDENAssistant Attorney GeneralEnvironment & Natural Resources DivisionUnited States Department of JusticeDAVID B. GLAZER (D.C. 400966)

Natural Resources SectionEnvironment & Natural Resources DivisionUnited States Department of Justice301 Howard Street, Suite 1050San Francisco, California 94105TEL: (415) 7446491FAX: (415) 744-6476e-mail: [email protected]

Attorneys for Federal Defendants

ANDREW W. TWIETMEYERThe Law Office of Andrew W. Twietmeyer10780 Santa Monica Blvd., Suite 401Los Angeles, CA 90025TEL: (310) 909-7138FAX: (323) 988-7171e-mail: [email protected]

Attorney for Plaintiff

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

SACRAMENTO DIVISION

THE AGUA CALIENTE TRIBE OF CUPEOINDIANS OF THE PALA RESERVATION,

Plaintiff,

v.

KEVIN K. WASHBURN, et al.,

Defendants.

No. 2:15-cv-02329-GEB-KJN

PARTIES JOINT STATUS REPORT

Date: January 19, 2016

Time: 9:00 a.m.

Courtroom No. 10

Hon. Garland E. Burrell, Jr.

Case 2:15-cv-02329-GEB-KJN Document 5 Filed 01/05/16 Page 1 of 12


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Agua Caliente Tribe v. Washburn, No. 2:15-cv-02329-GEB-KJN

Parties Joint Status Report 1

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Plaintiff, the Agua Caliente Tribe of Cupeo Indians and Federal Defendant Kevin K. Washburn

submit this Joint Status Report in accordance with the Courts Order of November 10, 2015, ECF No. 3.

As required by Paragraph 6 of that Order, the Parties respond as follows:

a) Status of service of process on parties not yet served

Defendant has been served.

b) Possible joinder of additional parties

Plaintiff does not presently anticipate the need to join any additional parties. Plaintiff has sued

Defendant in his official capacity, but is informed that Defendant will be leaving his position with the

Bureau of Indian Affairs later this month. Plaintiff will identify Defendants replacement as DOEDefendant when he or she is identified.

Federal Defendant does not anticipate joining additional parties.

c) Anticipated amendment of pleadings

In the event that Defendant provides Plaintiff with a response to Plaintiffs December 2014

request to correct the List of Federally Recognized Indian Tribes prior to filing his Motion to Dismiss,

Plaintiff may need to amend the Complaint. The need to amend will depend on the nature of Defen-

dants response. Likewise, Plaintiff anticipates the need to amend the Complaint in the event that

Defendant ignores Plaintiffs letter and simply publishes the 2016 List without making the requested

correction and proceeds to replace the currently listed tribe known as the Pala Band of Luiseno Mission

Indians of the Pala Reservation, California (the Pala Luiseno) with the unlisted entity known as the

Pala Band of Mission Indians (the PBMI).

d) The basis for jurisdiction and venue

Plaintiff asserts jurisdiction under the general federal question statute, 28 U.S.C. 1331, and

mandamus, 28 U.S.C. 1361. Plaintiff asserts venue in this district under 28 U.S.C. 1391(e).



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Federal Defendant disputes the availability of mandamus jurisdiction in this case because Federal

Defendant owes Plaintiff no non-discretionary duty. As currently pled, Plaintiffs claims do not come

within scope of the Administrative Procedure Act (APA), 5 U.S.C. 701706, and the United States

waiver of sovereign immunity, because Plaintiff has, among other things, failed to exhaust its admini-

strative remedies; there is thus no Article III jurisdiction in this Court over those claims.

Plaintiff disagrees. In passing the Federally Recognized Indian Tribe List Act of 1994, Congress

expressly charged Defendant with the responsibility of keeping a list of federally recognized Indian

tribes that is accurate and which reflect[s] all of the federally recognized Indian tribes in the United

States. PL 103-454 103(6)-(8). Congresss requirement that the List be both accurate and that itreflect all of the federally recognized Indian tribes in the United States demonstrates that Defendant

does not have discretion as to which tribes are included on the List. On the contrary, Defendant has a

non-discretionary duty to list all federally-recognized tribes. Defendant thus has a non-discretionary

duty to refrain from replacing the name of an historic federally-recognized tribe (the Pala Luiseno)

which has had a government-to-government relationship with the United States for over a century-and-

a-half with the name of an tribal association (the PBMI) which was formed in only 1961.

Because Congress formed a government-to-government relationship with Plaintiff over a

century-and-a-half ago, and Congress has never terminated that relationship, a necessarily implied

component of Defendants non-discretionary duty to maintain an accurate List is Defendants non-

discretionary duty to provide a reasoned response when Plaintiff (a tribe that is unlisted despite the fact

that Congress has recognized Plaintiff by treaty and by setting aside land for Plaintiffs benefit) requests

that the List be corrected to include Plaintiffs absent name and that the List not be changed to replace

the name of a federally recognized tribe (the Pala Luiseno) with the name of a tribal entity formed in

1961 (the PBMI). Plaintiffs claims for relief seek such a reasoned response. Defendant himself

apparently agrees that such a response is required as Defendants agents have been assuring Plaintiff



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since February 2015 that such a response is forthcoming.

Defendants delay and withholding of that required response is unreasonable and unlawful given

prior precedents in which the United States has corrected the List to include other federally recognized

but unlisted tribes. Defendants failure to respond thus falls squarely within the scope of the APA. See

5 U.S.C. 551(13); 701(b)(2); 702; 706(1).

e) Anticipated motions with suggested dates

Federal Defendant anticipates filing a motion to dismiss the complaint on or before January 15,

2015. See also Item h), below

f) Anticipated and outstanding discoveryPlaintiff does not anticipate the need for discovery provided that Defendant includes the

following items in Defendants initial disclosures or in the Administrative Record:

1) All documents and Communications in the Bureaus possession, custody, control relating

to the Bureaus correction of the list with respect to (a) the Ione Band List Correction (1994); (b) the

Lower Laker Rancheria List Corrected (2000); and (c) the Tejon Tribe (2012);

2) Un-redacted copies of

(a) a 7-page Letter dated June 21, 1996, addressed to Robert Smith, Spokesman Pala

Band of Mission Indians from Sacramento Area Director Ronald M. Jaeger (hereinafter the June 21,

1996 Letter);

(b) the January 17, 1995 Letter referred to at the top of the June 21, 1996 Letter and the

request to which that January 17, 1995 letter was responding;

(c) a 2-page Letter dated December 8, 1999, addressed to Robert H. Smith, Chairman

Pala Band of Mission Indians, from Pacific Regional Director Amy Dutschke (hereinafter the

December 8, 1999 Letter);

(d) the Solicitors Opinion referred to at the bottom of page two of the December 8,



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1999 Letter.

4) All communications between the BIA and Robert Smith, relating to the Agua Caliente

Cupeo;

5) All communications between the BIA and Pala Band of Mission Indians relating to the

Agua Caliente Cupeo;

6) All communications between the BIA and the Pala Band of Luiseno Mission Indians of the

Pala Reservation;

7) All internal communications and memoranda of BIA regarding the Agua Caliente Cupeo;

and8) All communications between the BIA and any person relating to the Agua Caliente

Cupeo.

Federal Defendant does not anticipate seeking any discovery and, because this case is reviewable

under the APA, if at all, and on the administrative record, rather than on information generated in the

reviewing court, Federal Defendant would object to any discovery propounded by Plaintiff. See also

Item g), below.

g) A written report outlining the proposed discovery plan

Federal Defendant takes the position that this case is exempted from the initial disclosure

requirements, Fed. R. Civ. P. 26(a)(1)(B)(i), 26(a)(2)(A), 26(a)(3)(A), and that the Parties are exempted

from the otherwise applicable requirements of Fed. R. Civ. P. 26(f). Federal Defendant also does not

believe that any discovery is appropriate in this case. SeeFed. R. Civ. P. 26(a)(1)(B)(i), 26(f)(1). Under

the APA, discovery on the merits of Plaintiffs challenge is generally not available. SeeFlorida Power

& Light v. Lorion, 470 U.S. 729, 74344 (1985); Camp v. Pitts, 411 U.S. 138, 14143 (1973) (per

curiam);Hall v. Norton, 266 F.3d 969, 97778 (9th Cir. 2001). The reviewing courts role is limited to

applying the appropriate APA standard of review under 5 U.S.C. 706 to the agencys decision, based



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upon the administrative record compiled by the agency. Florida Power & Light, 470 U.S. 74344;

Camp v. Pitts, 411 U.S. at 14143.

Plaintiff does not agree that the authorities Defendant cites above bar initial disclosures or

discovery in this case. The cases cited above all involvedchallengestocompletedagency actionunder

5 U.S.C. 706(2). In such instances, the agency, having taken action may defeat the APA claim if the

agency compiles a record showing that Defendants conduct was in accordance with the law, not

arbitrary, capricious, or an abuse of discretion. See id.

In this case, by contrast, Plaintiff seeks to compel action unlawfully withheld and unreasonably

delayedunder 5 U.S.C. 706(1). Under these circumstances to limit the Courts review to an admini-strative record that Defendant compiles without any coercive requirement that Defendant include certain

documents in that record would permit Defendant to conceal any documents that would tend to show

that Defendant has been unduly influenced or acted unreasonably or unlawfully in withholding action.

Indeed, having taken no action, Defendant can persuasively take the position that there isno relevant

administrative record for the Court to consider. For this reason courts have held that extra-record review

is appropriate where, as here, the Plaintiff sues for a failure to take action. See, e.g., Fund for Animals v.

Williams, 391 F.Supp.2d 191, 197198 (D.D.C. 2005) (citingEsch v. Yeutter, 876 F.2d 976, 991 (D.C.

Cir. 1989)).

As set forth in section (f) above, Plaintiff does not anticipate the need for discovery in this case

provided that Defendants either disclose the documents listed in section (f), or include those documents

in the Administrative Record. Plaintiff respectfully submits that an Administrative Record that does not

include those documents would be inadequate. Any dispute as to whether disclosures or discovery are

permissible in this case can largely be mooted by an order that the Administrative Record include the

documents identified in section (f) above and Defendants faithful compliance with such an order.



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Federal Defendant takes that position that even if Plaintiffs claims are properly characterized as

failure to act claims, such claims are encompassed by the review provisions of Section 706 of the

APA, including the requirement that judicial review of such claims be based on the whole [administra-

tive] record or those parts of it cited by a party. 5 U.S.C. 706. Section 706 of the APA provides that

(subject to pertinent exhaustion requirements) the reviewing court may compel agency action unlaw-

fully withheld or unreasonably delayed, 5 U.S.C. 706(1), and the APA defines agency action to

include an agencys failureto act, see5 U.S.C. 551(13) (emphasis added). Moreover, because the

Secretarys decision is one informed by the Agencys own expertise, development of the administrative

record should reflect that expertise and should be left initially to the Agency. Therefore, FederalDefendant believes that an order directing the Agency what to include in the administrative record

before it has taken action would be inappropriate. See, e.g.,FTC v. Std. Oil Co., 449 U.S. 232, 24243

(1980) (court should not interfere in administrative process);J.L. v. Social Sec. Admin., 971 F.2d 260,

26566 (9th Cir. 1992) (documentation for court review should be developed through administrative

proceeding). In short, should this case proceed to the merits after the Secretary acts on Plaintiffs

request for relief (see Item n), below), review of Plaintiffs claims would be on the administrative record

compiled by the Agency and considered by the Court.1

h) Scheduling of future proceedings, including suggested timing of the disclosures of expert

witnesses and information required by Rule 26(a)(2), completion dates for discovery and law and

motion, and dates for final pretrial conference and trial

1Fund for Animals v. Williams, 391 F. Supp. 2d 191, 19798 (D.D.C. 2005), cited by Plaintiff, is not tothe contrary. In that case, the district court allowed supplementation of the administrative record withdocuments that were before the agency at the time it made its decision. See id. at 19899; see alsoLands Council v. Forester of Region One of the United States Forest Serv., 395 F.3d 1019, 1030 (9thCir. 2005) (supplementation may in limited circumstances be appropriate if administrative record isincomplete) (citing Camp v. Pitts, 411 U.S. 138, 14243 (1973)).



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Federal Defendant takes the position that this case is reviewable on the administrative record, if

at all, and, therefore, that the expert witness disclosure requirements of Rule 26(a)(2) do not apply. See

Fed. R. Civ. P. 26(a)(1)(B)(i), 26(a)(2)(A). The merits of Plaintiffs claims would be addressed by

cross-motions for summary judgment based on the administrative record. However, as noted in Item e),

above, Federal Defendant anticipates moving to dismiss Plaintiffs complaint. Federal Defendant

suggests that it might be most efficient to defer scheduling further proceedings, as necessary, until the

Courts resolution of that motion or until expiration of the stay Federal Defendant suggests in Item n,

below, or amendment of Plaintiffs Complaint in response to the Secretarys decision on its request.

Without waiver of any right, Plaintiff does not presently anticipate the need for expert witnessesin this case. If Defendant refuses to stipulate to the facts and the authenticity of relevant bureau and

historical records, then expert testimony could become necessary. Plaintiff agrees that scheduling of

further proceedings should be delayed until the Court resolves Defendants forthcoming motion.

i) Estimate of trial time

Federal Defendant believes no trial would be necessary or appropriate in this case, as the case is

reviewable, if at all, under Section 706 of the APA. Plaintiff is not aware of any statute that makes a

trial inappropriate in APA cases. Plaintiff hopes and anticipates that the parties will stipulate to the

relevant facts and the authenticity of bureau records and other relevant documents. In that event,

Plaintiff agrees that the case can likely be resolved through motions for summary judgment. Otherwise,

Plaintiff estimates a trial of five days.

j) Appropriateness of special procedures such as reference to a special master or agreement to

try the matter before a magistrate judge pursuant to 28 U.S.C. 636(c)

The parties do not believe that any special procedures are necessary or appropriate in this case.



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k) Modification of standard pretrial procedures because of the simplicity or complexity of the

case

The Parties agree that, if this case is reviewable, it is reviewable pursuant to Section 706 of the

APA. Accordingly, Federal Defendant anticipates that resolution on the merits would proceed through

motions for summary judgment and that no pretrial proceedings would be necessary. Whether the case

is resolved on summary judgment or not, Plaintiff does not believe that the case will require modifica-

tion of standard pretrial procedures.

l) Whether the case is related to any other case on file in this district, including the bankruptcy

courts of this districtThis case is not related to any cases currently on file in this district. However, it is related to

Aguayo v. Jewell, No. 13-cv-01435-BAS(KSC) (S.D. Cal.). In that case, individual descendants of

Margarita Britten (seeComplaint 99101) sued the Department of the Interior to complain that, in

their view, they had been wrongfully disenrolled from the Pala Band of Mission Indians. The plaintiffs

in that case are currently pursuing an appeal of an adverse decision by the district court, reported at

2014 U.S. Dist. LEXIS 161616 (S.D. Cal. Nov. 18, 2014), appeal docketed, No. 14-56909 (9th Cir. Dec.

5, 2014).2

m) Prospects for settlement, including whether a settlement conference should be scheduled

and whether the parties will stipulate to the trial judge acting as settlement judge

The Federal Defendant will not stipulate to the presiding judge acting as settlement judge.

However, Federal Defendant would consider a settlement offer from the Plaintiff and whether a settle-

ment conference before another judge or magistrate or other neutral might assist in reaching a negotiated

resolution.

2Oral argument in that case is scheduled for February 5, 2016.



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Plaintiff would be willing to dismiss Plaintiffs second claim for relief for prohibitory injunctive

relief if Defendant agrees to correct the List of Federally Recognized Indian Tribes so that it includes

Plaintiffs name, the Agua Caliente Tribe of Cupeo Indians of the Pala Reservation, California.

n) Other matters that may be conducive to the just and expeditious disposition of the case

Federal Defendant may be able to respond within the next two months to Plaintiffs request, set

forth in the First Claim for Relief of its Complaint, that Federal Defendant correct the List of Federally

Recognized Indian Tribes to include Plaintiffs name. If Plaintiff receives a response at that time,

Plaintiff may wish to amend its Complaint accordingly. Federal Defendant proposes that it may be

preferable therefore to stay litigation of Plaintiffs First Claim for Relief until that time. Accordingly,Federal Defendant would respectfully suggest that the Court enter such a stay, which would run until

February 5, 2016. If the Department of the Interior does not issue the anticipated response by that date,

the stay would expire. If it does, then Plaintiff may move to amend its Complaint at that time.

Plaintiff disagrees that the case should be stayed. Plaintiff requested that Defendant correct the

List more than one year ago. Plaintiffs counsel was then informed in February 2015 that a responsive

letter was being drafted. Plaintiffs counsel was then informed on April 24 2015, by Director of the

Office of Federal Acknowledgment, Lee Fleming, that the responsive letter was being drafted by

solicitor Scott Keep and that, hopefully it would be delivered by May 8, 2015. Plaintiff sent a detailed

follow-up letter with voluminous exhibits on June 16, 2015, and re-iterated Plaintiffs request that the

List be corrected. Counsel for Plaintiff then spoke with Solicitor Keep on July 17, 2015. Mr. Keep

informed counsel that a response to Plaintiffs request had not been drafted and that it would certainly be

at least a couple of weeks. Defendant has delayed for more than a year. Every day of delay carries

serious detrimental consequences for Plaintiff and Plaintiffs members as they are deprived of the use

and benefit of lands set aside for their benefit at the express direction of Congress. The Court should not

afford Defendants the opportunity for further delay by staying this action.



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Respectfully submitted,

DATED: January 5, 2016 JOHN C. CRUDENAssistant Attorney GeneralEnvironment & Natural Resources Division

/s/David B. GlazerDAVID B. GLAZERNatural Resources SectionEnvironment & Natural Resources DivisionUnited States Department of Justice301 Howard Street, Suite 1050San Francisco, CaliforniaTel: (415) 744-6491Fax: (415) 744-6476E-mail: [email protected]

Attorneys for Federal Defendant

OF COUNSEL

JAMES PORTEROffice of the SolicitorU.S. Department of Interior

DATED: January 5, 2016 /s/Andrew W. Twietmeyer(as authorized on January 5, 2016)ANDREW W. TWIETMEYERThe Law Office ofAndrew W. Twietmeyer10780 Santa Monica Blvd., Suite 401Los Angeles, CaliforniaTel: (310) 909-7138Fax: (323) 988-7171E-mail: [email protected]

Attorney for Plaintiff



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