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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MASHPEE WAMPANOAG TRIBE, Plaintiff,
v. DAVID L. BERNHARDT, in his official capacity as Secretary of the Interior, and UNITED STATES DEPARTMENT OF THE INTERIOR, Federal Defendants, v. DAVID LITTLEFIELD, et al., Intervenor- Defendants.
Case No. 1:18-cv-2242-PLF
FEDERAL DEFENDANTS’ MEMORANDUM IN OPPOSITION TO PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION
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Table of Contents
Introduction ................................................................................................................... 1
Statutory Framework .................................................................................................... 3
Factual Background ...................................................................................................... 4
I. Interior’s 2015 decision acquiring land into trust for the Tribe ............. 4
II. Challenge to Interior’s 2015 decision in the United States District Court for the District of Massachusetts and United States Court of Appeals for the First Circuit ................................................................ 5
III. Interior’s 2018 decision finding that the Tribe was not under Federal jurisdiction in 1934 ..................................................................... 7
IV. The Tribe’s challenge to Interior’s 2018 decision in this Court .............. 8
Standard of Review ........................................................................................................ 9
I. Preliminary injunctions ........................................................................... 9
II. Administrative Procedure Act ............................................................... 10
Argument ..................................................................................................................... 11
I. The Court lacks jurisdiction to consider the Tribe’s motion for a preliminary injunction ........................................................................... 11
A .The Court lacks jurisdiction because the Tribe’s remedy was in the First Circuit ............................................................... 11
B. The Court lacks jurisdiction because the Tribe’s motion seeks a different remedy and raises new issues than the Tribe’s complaint. ........................................................................ 12
II. The Tribe is unlikely to succeed on the merits of its claims ................. 15
III. The Tribe has not shown irreparable injury ......................................... 18
IV. Neither the balance of the harms nor the public interest favor an injunction ................................................................................................ 21
Conclusion .................................................................................................................... 24
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Table of Authorities Cases
Adair v. England, 193 F. Supp. 2d 196 (D.D.C. 2002) .......................................................................... 13
Alabama v. U.S. Army Corps of Eng’rs, 424 F.3d 1117 (11th Cir. 2005) ................................................................................ 13
Am. Paper Inst., Inc., v. Am. Elec. Power Serv. Corp., 461 U.S. 402 (1983) .................................................................................................. 10
Benoit v. District of Columbia, 2018 WL 5281908 (D.D.C. Oct. 24, 2018) ................................................................ 12
Cal. Ass’n of Private Postsecondary Sch. v. DeVos, 344 F. Supp. 3d 158 (D.D.C. 2018) .................................................................... 18, 20
Carcieri v. Salazar, 555 U.S. 379 (2009) ................................................................................................ 3, 4
Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290 (D.C. Cir. 2006) .................................................................................. 18
Confederated Tribes of the Grand Ronde Cmty. of Or. v. Jewell, 75 F. Supp. 3d 387 (D.C. Cir. 2016) ................................................................... 11, 17
Crawford-Hall v. United States, 394 F. Supp. 3d 1122 (C.D. Cal. 2019) .................................................................... 29
De Beers Consol. Mines v. United States, 325 U.S. 212 (1945) ...................................................................................... 12, 13, 14
Fund for Animals v. Espy, 814 F. Supp. 142, 152 (D.D.C.) ................................................................................ 22
Gas Co. v. Fed. Energy Regulatory Comm’n, 758 F.2d 669 (D.C. Cir. 1985) ............................................................................ 18, 20
Karem v. Trump, 404 F. Supp. 3d 203 (D.D.C. 2019) ............................................................................ 9
Konarski v. Donovan, 763 F. Supp. 2d 128 (D.D.C. 2011) ............................................................................ 9
League of Women Voters of the U.S. v. Newby, 838 F.3d 1 (D.C. Cir. 2016) ...................................................................................... 10
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Littlefield v. Mashpee Wampanoag Indian Tribe, 951 F.3d 30 (1st Cir. 2020) .............................................................................. passim
Littlefield v. U.S. Dep’t of the Interior, 199 F. Supp. 3d 391 (D. Mass. 2016) ............................................................... passim
Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209 (2012) .................................................................................................. 20
Mdewakanton Sioux Indians of Minn. v. Zinke, 255 F. Supp. 3d 48 (D.D.C. 2017) ............................................................................ 10
Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) .................................................................................................... 11
Munaf v. Geren, 553 U.S. 674 (2008) .................................................................................................... 9
Muwekma Ohlone Tribe v. Salazar, 813 F. Supp. 2d 170 (D.D.C. 2011) .................................................................... 15, 16
Nken v. Holder, 556 U.S. 418 (2009) .................................................................................................. 21
Norton v. S. Utah Wilderness Alliance, 542 U.S. 55 (2004) .................................................................................................... 15
Pub. Citizen, Inc. v. Fed. Aviation Admin., 988 F.2d 186 (D.C. Cir. 1993) .................................................................................. 16
Sai v. Transp. Sec. Admin., 54 F. Supp. 3d 5 (D.D.C. 2014) .......................................................................... 13, 14
Sherley v. Sebelius, 644 F.3d 388 (D.C. Cir. 2011) .................................................................................... 9
Smith v. Café Asia, 598 F. Supp. 2d 45 (D.D.C. 2009) ............................................................................ 13
Stand Up for Cal. v. U.S. Dep’t of the Interior, 919 F. Supp. 2d 51 (D.D.C. 2013) ............................................................................ 24
Tourus Records, Inc. v. Drug Enforcement Agency, 259 F.3d 731 (D.C. Cir. 2001) .................................................................................. 16
U.S. Postal Serv. v. Gregory, 534 U.S. 1 (2001) ...................................................................................................... 10
Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, 435 U.S. 519 (1978) .................................................................................................. 13
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Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008) ...................................................................................... 9, 10, 18, 21
Statutes
5 U.S.C. § 706(2)(A) ........................................................................................... 1, 10, 15
25 U.S.C. § 2206(b)(2)(B) ............................................................................................. 23
25 U.S.C. § 5108 ......................................................................................................... 1, 3
25 U.S.C. § 5110 ............................................................................................................. 4
25 U.S.C. § 5129 ..................................................................................................... 3, 4, 5
Pub. L. No. 116-136, (Mar. 27, 2020) .......................................................................... 19
Regulations
25 C.F.R. § 20.100 ........................................................................................................ 19
25 C.F.R. § 20.201 ........................................................................................................ 19
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Introduction
In 2015, the Interior Department issued a decision acquiring land in
Mashpee and Taunton, Massachusetts and holding it in trust for the benefit of the
Mashpee Wampanoag Tribe (Tribe) under the Indian Reorganization Act of 1934
(IRA), 25 U.S.C. § 5108. In the 2015 decision, Interior concluded that the Tribe was
eligible for trust acquisition under the IRA’s second definition of “Indian.” But the
United States District Court for the District of Massachusetts ruled against
Interior, finding that Interior lacked statutory authority to acquire land in trust for
the Tribe.
Although litigation continued regarding Interior’s 2015 decision, the District
of Massachusetts remanded the matter to the agency to determine if the Tribe was
“under Federal jurisdiction” in 1934 and thus could still be eligible for trust
acquisition under the IRA. After an extensive examination, in 2018, Interior issued
a decision finding that the evidence did not establish any significant contacts
between the Tribe and United States through treaty, legislation, or Federal
administrative action. In this court, the Tribe challenges Interior’s 2018 decision
under the Administrative Procedure Act (APA), 5 U.S.C. § 706(2)(A). The parties
completed briefing on motions for summary judgment in October, 2019.
On February 27, 2020, the United States Court of Appeals for the First
Circuit affirmed the Massachusetts district court’s holding that Interior’s
acquisition of the Mashpee and Taunton parcels was unlawful. After the First
Circuit issued a mandate in accordance with its judgment, Interior issued a decision
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instructing the Bureau of Indian Affairs (BIA) to rescind the 2015 decision
acquiring land into trust for the Tribe. See Interior’s March 27, 2020, decision,
attached as Ex. 1.
Now, the Tribe has filed a motion in this case challenging Interior’s
March 27, 2020, decision and seeking a preliminary injunction preventing Interior
from recording transfer of the land out of trust. In order to obtain the extraordinary
relief of a preliminary injunction, the Tribe must establish that this Court has
jurisdiction over its motion and show a combination of a substantial likelihood of
success on the merits of its claims, irreparable injury if the relief is not granted, and
that the public interest favors such an order. The Tribe cannot show that it is
entitled to emergency relief.
Although the Tribe is trying to bootstrap a new request for injunctive relief
into this case, its relief does not lie in this Court. As an initial matter, the Tribe’s
request for relief must be filed in the First Circuit or District of Massachusetts as it
is those courts that held unlawful Interior’s decision to take the contested land into
trust. But even if the Tribe could seek a remedy outside those courts, the Tribe’s
complaint here does not seek any relief regarding the trust status of the Mashpee
and Taunton parcels or include a challenge to Interior’s March 27, 2020, decision.
Thus, the Court does not have jurisdiction to consider the motion for a preliminary
injunction.
Yet additional reasons exist for denying the requested extraordinary
emergency relief:
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• The Tribe makes no attempt to show that it is likely to succeed on the merits of a challenge to Interior’s March 27, 2020, decision;
• Interior’s 2018 decision was based on a rigorous examination of the Tribe’s submissions and is well-supported by the administrative record;
• The Tribe’s allegations of irreparable injury are based on a
misconception. In actuality, the Tribe can receive Federal funding without the Mashpee and Taunton parcels being kept in trust and reservation status;
• The Tribe relies on speculative harm that is either reparable or does
not stem from Interior’s March 27, 2020 decision;
• The public interest is served by Interior’s decision to act in accordance with the First Circuit’s holding and mandate;
• Interior’s decision provides clarity to the State of Massachusetts and
local governments regarding the status of this land. For all of these reasons, the Tribe’s motion should be denied.
Statutory Framework
Under the Indian Reorganization Act of 1934, the Secretary of the Interior
may take land into trust for “Indians,” 25 U.S.C. § 5108. The IRA defines “Indian”
to include:
[1] all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction, and [2] all persons who are descendants of such members who were, on June 1, 1934, residing within the present boundaries of any Indian reservation, and . . . [3] all other persons of one-half or more Indian blood.
25 U.S.C. § 5129.
The IRA’s first definition of “Indian” was addressed by the Supreme Court in
Carcieri v. Salazar, 555 U.S. 379 (2009), a case that involved a decision of the
Secretary of the Interior to acquire land and hold it in trust for the Narragansett
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Tribe of Rhode Island. At issue was whether the Narragansett Tribe was a
“recognized Indian tribe now under Federal jurisdiction” within the meaning of
what is now Section 5129. The Secretary had determined that the phrase “‘now
under Federal jurisdiction”’ meant the tribe must be under Federal jurisdiction “at
the time that the land is accepted into trust.” Id. at 382 (emphasis added; citation
omitted). But based primarily on “the ordinary meaning of the word ‘now’” and “the
natural reading of the word with the context of the IRA,” id. at 388, 389, the
Supreme Court held that “the term ‘now under Federal jurisdiction’ in [Section
5129] unambiguously refers to those tribes that were under the federal jurisdiction
of the United States when the IRA was enacted in 1934,” id. at 395. The Supreme
Court did not address the IRA’s second definition of “Indian.”
In addition to authorizing the Secretary to accept land into trust for
“Indians,” the IRA also authorizes the Secretary “to proclaim new Indian
reservations on lands acquired pursuant to any authority conferred by [the] Act, or
to add such lands to existing reservations.” 25 U.S.C. § 5110.
Factual Background
I. Interior’s 2015 decision acquiring land into trust for the Tribe
Shortly after the Tribe’s federal acknowledgment, the Tribe asked Interior to
acquire land in trust for the Tribe’s benefit pursuant to the IRA. AR 52291
(September 18, 2015, Record of Decision, hereinafter Interior’s 2015 decision at 4).
1 The relevant portions of the AR can be found in the joint appendix filed by the parties. ECF No. 39.
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The property is composed of approximately 170 acres in Mashpee, Massachusetts
and 150 acres near the City of Taunton, Massachusetts. Id.
On September 18, 2015, Interior issued a record of decision to acquire the
Mashpee and Taunton parcels in trust for the Tribe and proclaim such lands to be
the Tribe’s reservation. AR 5223-5362 (Interior’s 2015 decision). Interior
determined that it had statutory authority to acquire the lands in trust under the
IRA’s second definition of “Indian,” which includes “all persons who are descendants
of such members who were, on June 1, 1934, residing within the present boundaries
of any Indian reservation.” 25 U.S.C. § 5129; AR 5304-5326 (Interior’s 2015
decision at 79-101). Subsequently, BIA took the parcels of land into trust for the
Tribe and issued a reservation proclamation. 81 Fed. Reg. 948 (Jan. 8, 2016).
II. Challenge to Interior’s 2015 decision in the United States District Court for the District of Massachusetts and United States Court of Appeals for the First Circuit
In 2016, several residents of the City of Taunton, Massachusetts (together,
Intervenor-Defendants) challenged Interior’s 2015 decision in the United States
District Court for the District of Massachusetts. Littlefield v. U.S. Dep’t of the
Interior, No. C-16-10184 (filed in D. Mass. 2016). Among their claims, Intervenor-
Defendants challenged Interior’s application of the IRA’s second definition of
“Indian.” Littlefield v. U.S. Dep’t of the Interior, 199 F. Supp. 3d 391, 394 (D. Mass.
2016).
The district court ruled against Interior and concluded that the IRA’s second
definition of “Indian” unambiguously incorporates the “now under Federal
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jurisdiction” requirement from the Act’s first definition of “Indian.” Id. at 399-400.
The district court entered declaratory judgment in Intervenor-Defendants’ favor
and remanded to Interior for further proceedings consistent with its opinion. Id. at
400. Because the district court’s decision suggested that the Tribe was not under
Federal jurisdiction in 1934, an issue Interior’s 2015 decision had expressly declined
to reach, the district court later clarified that Interior could, consistent with its
opinion, evaluate whether the Tribe was under Federal jurisdiction in 1934.
Littlefield, No. C-16-10184, Order of Oct. 12, 2016, ECF No. 121.
Interior and the Tribe each filed notices of appeal from the decision.
Littlefield v. Mashpee Wampanoag Indian Tribe, 951 F.3d 30, 34 (1st Cir. 2020).
Interior, however, later moved for voluntary dismissal of its appeal. Id. On
February 27, 2020, the First Circuit affirmed the district court’s finding that
Interior lacked statutory authority to acquire land in trust for the Tribe. Id. at 33.
The Tribe did not petition for a panel rehearing or a rehearing en banc. On
March 19, 2020, the First Circuit issued a mandate in accordance with its judgment
pursuant to FED. R. APP. P. 41(a). Littlefield, No. C-16-2484 1st Cir. 2016).
Subsequently, on March 27, 2020, the Secretary issued a final agency action
explaining that with the First Circuit’s mandate now issued, Interior must take
steps to rescind the 2015 decision acquiring land into trust for the Tribe. Ex. 1.
The Secretary instructed BIA to transfer the parcels out of trust, revoke the
reservation proclamation, and annul the gaming eligibility determination. Id.
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III. Interior’s 2018 decision finding that the Tribe was not under Federal jurisdiction in 1934
Between December 2016 and February 2017, the Tribe and Intervenor-
Defendants submitted evidence and arguments on whether the Tribe was under
Federal jurisdiction in 1934. After considering these materials, Interior requested
that the parties provide additional briefing on the effect of Massachusetts’ early
historical exercise of authority over the Tribe for the “under Federal jurisdiction”
analysis. AR 4714-4857. In the latter half of 2017, Interior received supplemental
submissions from the parties, a neighboring Indian tribe, and several towns in
Connecticut.2
After reviewing the submissions made by the Tribe, Intervenor-Defendants,
and the third parties, on September 7, 2018, Interior issued a decision finding that
the Tribe was not under Federal jurisdiction in 1934. AR 5088-5115 (Remand
Decision, hereinafter Interior’s 2018 decision). Interior explained that “the evidence
does not show any significant contacts between the United States and the Tribe
through treaty, legislation, or Federal administrative action.” AR 5107 (Interior’s
2018 decision at 20). In sum, the administrative record included “little indicia of
Federal jurisdiction beyond the general principle of plenary authority, and little if
any evidence demonstrating that the United States took any actions establishing or
reflecting Federal obligations, duties, responsibilities for or authority over the Tribe
in or before 1934.” AR 5115 (Interior’s 2018 decision at 28). Because the Tribe was
2 See AR 8349-8419, AR 9483-9507 AR 9537-9539; AR 7126-7200; AR 9381-9427; AR 9511-9533; AR 9374-9380; AR 5194-5195.
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not under Federal jurisdiction in 1934, the Tribe does not meet the IRA’s first
definition of “Indian,” nor the Act’s second definition as defined in Littlefield. Id.
IV. The Tribe’s challenge to Interior’s 2018 decision in this Court
The Tribe’s complaint in this case asserts a single cause of action that alleges
that Interior’s 2018 decision finding that the Tribe was not under Federal
jurisdiction in 1934 is arbitrary, capricious, and contrary to law because Interior
failed either to consider all of the relevant evidence or to consider the Tribe’s
evidence as a whole. Compl. ¶¶ 61-66, ECF No. 1. The Tribe seeks a declaration to
that effect and an injunction ordering Interior to issue a new decision based on the
evidence and consistent with law, regulation, and Departmental policy. Id. ¶¶ 67-
68. Federal Defendants moved for summary judgment to be entered in their favor
on the Tribe’s cause of action. ECF No. 31; 37.
On March 30, 2020, the Tribe filed a motion for a temporary restraining order
and a preliminary injunction against Interior to prevent the agency from taking any
steps to alter the status of the Mashpee and Taunton parcels. ECF No. 42. On
March 31, 2020, the Court held a conference with counsel and ordered the parties to
confer and agree upon a briefing schedule. In accordance with the parties’
agreement, on April 6, 2020, the Court ordered that the Tribe’s motion for a
temporary restraining order was held in abeyance provided that Interior refrained
from completing the ministerial tasks necessary to record the transfer of the parcels
out of trust, revoke the reservation proclamation, and annul the gaming eligibility
determination. ECF No. 44. The Court also entered a briefing schedule for the
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Tribe’s motion for a preliminary injunction and set oral argument on the motion.
Id. Federal Defendants file this response in opposition to the Tribe’s motion for a
preliminary injunction.
Standard of Review
I. Preliminary injunctions
The grant of a preliminary injunction is an “extraordinary and drastic
remedy.” Munaf v. Geren, 553 U.S. 674, 689 (2008) (citation omitted). “As an
extraordinary remedy, courts should grant such relief sparingly.” Konarski v.
Donovan, 763 F. Supp. 2d 128, 133 (D.D.C. 2011). The Tribe is entitled to
preliminary relief only if it demonstrates (1) likelihood of success on the merits, (2)
likelihood of irreparable harm in the absence of an injunction, (3) the balance of
hardships tips in their favor, and (4) an injunction is in the public interest. Winter
v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (citation omitted).
Prior to the Supreme Court’s ruling in Winter, a number of circuits, including
the D.C. Circuit, evaluated the four factors using a “sliding scale” approach—
allowing a strong showing on one of the factors to make up for a weaker showing on
another factor. Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011). As the Tribe
acknowledges, “the D.C. Circuit has ‘suggested, without deciding, that Winter
should be read to abandon the sliding-scale analysis in favor of a more demanding
burden requiring plaintiffs to independently demonstrate both a likelihood of
success on the merits and irreparable harm.’” Tribe’s Mem. of P. & A. in Supp. of
Pl.’s Emergency Mot. (Tribe’s Mot.) at 10, ECF No. 42-1 (quoting Karem v. Trump,
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404 F. Supp. 3d 203, 209 (D.D.C. 2019)). In any event, it is clear that Winter
rejected the argument that “when a plaintiff demonstrates a strong likelihood of
prevailing on the merits, a preliminary injunction may be entered based only on a
‘possibility’ of irreparable harm.” 555 U.S. at 21.
The Court should not grant preliminary relief unless the Tribe makes “a clear
showing that [the] four factors, taken together, warrant relief.” League of Women
Voters of the United States v. Newby, 838 F.3d 1, 6 (D.C. Cir. 2016) (internal
quotations omitted); Mdewakanton Sioux Indians of Minn. v. Zinke, 255 F. Supp. 3d
48, 51 (D.D.C. 2017) (the party moving for injunctive relief carries the burden of
persuasion).
II. Administrative Procedure Act
The APA directs the Court to uphold an agency’s decision unless it is deemed
to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law.” 5 U.S.C. § 706(2)(A). Although the inquiry must be thorough, the
standard of review is narrow and highly deferential, an agency’s decisions are
entitled to a “presumption of regularity,” and the Court cannot substitute its
judgment for that of the agency decision maker. U.S. Postal Serv. v. Gregory, 534
U.S. 1, 10 (2001). The Court need not find that an agency decision “is the only
reasonable one, or even that it is the result [the court] would have reached.” Am.
Paper Inst., Inc., v. Am. Elec. Power Serv. Corp., 461 U.S. 402, 422 (1983).
The Court must determine whether the agency: (1) relied on factors which
Congress had not intended it to consider; (2) entirely failed to consider an important
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aspect of the problem; (3) offered an explanation for its decision that runs counter to
the evidence before the agency; or, (4) offered an explanation so implausible that it
could not be ascribed to a difference in view or the product of agency expertise.
Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S.
29, 43 (1983); Confederated Tribes of the Grand Ronde Cmty. of Or. v. Jewell, 75 F.
Supp. 3d 387, 396 (D.C. Cir. 2016).
Argument
I. The Court lacks jurisdiction to consider the Tribe’s motion for a preliminary injunction
A. The Court lacks jurisdiction because the Tribe’s remedy was in
the First Circuit
This Court does not have jurisdiction to award the injunctive relief the Tribe
seeks. To the extent that any such remedy was available to the Tribe, it was in the
First Circuit. The First Circuit ruled against the Tribe, holding that Interior’s 2015
decision lacked authority to grant the Tribe’s land-into-trust application and
acquire the Mashpee and Taunton parcels in trust. Once the First Circuit issued its
mandate, Interior acted to rescind the 2015 decision. Ex. 1. If the Tribe wanted to
keep Interior from following the First Circuit’s mandate, it should have sought
relief from the First Circuit. The Tribe had the ability to petition for a panel
rehearing or a rehearing en banc from the First Circuit, but it did not. See First
Circuit Local Rules 35(b), 40. The Tribe also could have requested that the First
Circuit stay the issuance of the mandate, but it did not. See id. 41(d)(1) (“A party
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may move to stay the mandate pending the filing of a petition for a writ of certiorari
in the Supreme Court.”).
What the Tribe cannot do is use its challenge in a separate case and on a
separate issue in this Court to seek relief based on the First Circuit’s ruling and
Interior’s decision implementing the First Circuit’s mandate. See De Beers Consol.
Mines v. United States, 325 U.S. 212, 220 (1945) (a preliminary injunction is
inappropriate when it would provide relief that “in no circumstance” could be
provided “in any final injunction that may be entered”); see also Benoit v. District of
Columbia, Civil Action No. 18-114 (RC), 2018 WL 5281908, at *4-*5 (D.D.C. Oct. 24,
2018) (the court lacked jurisdiction over a motion for preliminary injunction based
on new facts not alleged in the complaint). Because the Tribe has not shown that
the Court has jurisdiction over its motion for a preliminary injunction, the motion
should be denied.
B. The Court lacks jurisdiction because the Tribe’s motion seeks a different remedy and raises new issues than the Tribe’s complaint.
The Tribe’s complaint in this case does not seek any relief regarding the trust
status of the Mashpee and Taunton parcels or include a challenge to Interior’s
March 27, 2020, decision. Accordingly, the Tribe has failed to invoke this Court’s
jurisdiction over its motion.
Here, the complaint does not seek any relief regarding the trust status of the
Tribe’s parcels. If the Court concludes that Interior’s 2018 decision was arbitrary or
capricious, the remedy should be an order remanding the decision to Interior to
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make a new decision regarding whether the Tribe was under Federal jurisdiction in
1934. Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, 435 U.S. 519, 549
(1978). The Tribe would not be entitled to the relief it seeks in the preliminary
injunction motion. Indeed, nothing in the Tribe’s complaint requests relief
regarding the trust status of the parcels. Compl. ¶¶ 67-68 (seeking an injunction
ordering Interior to issue a new decision). In the absence of an operative complaint
requesting such relief,3 this Court cannot and should not grant the Tribe’s motion
for a preliminary injunction. De Beers Consol. Mines, 325 U.S. at 220; Alabama v.
U.S. Army Corps of Eng’rs, 424 F.3d 1117, 1134 (11th Cir. 2005) (“injunctive relief
must relate in some fashion to the relief requested in the complaint”); Schwartz v.
United States Dep’t of Justice, 2007 U.S. Dist. LEXIS 74608 (D.N.J. Oct. 4, 2007)
(“When the movant seeks intermediate relief beyond the claims in the complaint,
the court is powerless to enter a preliminary injunction.”).
In addition, the Court lacks jurisdiction over a motion for a preliminary
injunction when it “raises issues different from those presented in the complaint.”
Adair v. England, 193 F. Supp. 2d 196, 200 (D.D.C. 2002). “A preliminary
injunction may not issue when it is not of the same character as that which may be
granted finally and when it deals with matter outside the issues in the underlying
3 If the Tribe wants to challenge the March 27, 2020, decision, it needs to file a new complaint. See FED. R. CIV. P. 15(a)(2) (a plaintiff is allowed to amend its complaint after an answer is filed only by leave of court or consent); Smith v. Café Asia, 598 F. Supp. 2d 45, 47 (D.D.C. 2009) (“Undue delay, undue prejudice to the defendant, or futility of the proposed amendment(s) are factors that may warrant denying leave to amend.” (citation omitted)).
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suit.” Sai v. Transp. Sec. Admin., 54 F. Supp. 3d 5, 8-9 (D.D.C. 2014) (internal
quotations omitted); see also De Beers Consol. Mines, 325 U.S. at 220.
In this case, the complaint’s solitary cause of action challenges only Interior’s
2018 decision finding that the Tribe was not under Federal jurisdiction in 1934.
Compl. ¶¶ 61-66. The 2018 decision involved different issues than those present in
the 2015 decision acquiring the parcels in trust. The Tribe, itself, previously
highlighted this fact, explaining that:
The matter before this Court does not concern the status of the Tribe’s trust land in Massachusetts, or the use of that land for gaming, or even the same definition of Indian under the IRA. Rather, the narrow APA question raised by the Tribe in this case before this Court concerns whether the Department acted arbitrarily, capriciously, or contrary to law in determining in its 2018 Decision that the Tribe was not under federal jurisdiction in 1934 pursuant to the IRA’s first definition of “Indian.”
Tribe’s Opp’n to Intervenor-Defs.’ Mot. to Transfer Venue at 19-20, ECF No. 17; see
also id. at 9 (Interior’s “2015 decision has no bearing on the discrete issue of law
that is the subject of the present action.”); id. at 20 (the questions raised in the two
cases are “substantially different”).
However, the harms that the Tribe now claims make injunctive relief
necessary do not stem from Interior’s 2018 decision; rather, they concern Interior’s
March 27, 2020, decision to rescind the 2015 decision. Tribe’s Mot. at 12-17. These
issues are not alleged anywhere in the Tribe’s complaint, and therefore they cannot
be the basis for injunctive relief. See Holly Sugar Corp. v. Johanns, 2006 U.S. Dist.
LEXIS 52948 (D.D.C. Aug. 1, 2006), aff’d, 2007 U.S. App. LEXIS 22624 (D.C. Cir.,
Sept. 21, 2007) (the court lacked jurisdiction to consider the plaintiff’s request for a
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preliminary injunction because it raised issues that could not have existed when the
complaint was filed).
II. The Tribe is unlikely to succeed on the merits of its claims
It is not necessary for the Court to consider the merits of the Tribe’s claims,
because the Tribe has not met its burden of establishing jurisdiction for its motion
for a preliminary injunction. If the Court does consider the merits, the Tribe is
unlikely to succeed on either a challenge to Interior’s March 27, 2020, decision or
Interior’s 2018 decision.
The Tribe has not filed a complaint with a properly pled claim challenging
Interior’s March 27, 2020, decision. The APA is a limited waiver of sovereign
immunity that provides that a reviewing court may set aside agency action that is
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law.” 5 U.S.C. § 706(2)(A). In order to obtain judicial review of agency action, a
plaintiff must identify a final agency action governed by applicable substantive law,
or show that it has exhausted administrative mechanisms for compelling agency
action that the agency was required by law to take but did not. See Norton v. S.
Utah Wilderness Alliance, 542 U.S. 55, 62-65 (2004).
The Tribe’s motion also makes no attempt to argue that a challenge to
Interior’s March 27, 2020, decision to transfer the land out of trust meets the first
prong of the preliminary injunction standard. And it does not. To comply with the
APA’s requirements—“[n]othing more than a ‘brief statement’ is necessary, so long
as the agency explains ‘why it chose to do what it did.’” Muwekma Ohlone Tribe v.
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Salazar, 813 F. Supp. 2d 170, 190 (D.D.C. 2011) (quoting Tourus Records, Inc. v.
DEA, 259 F.3d 731, 737 (D.C. Cir. 2001)), aff’d, 708 F.3d 209 (D.C. Cir. 2013). See
also Pub. Citizen, Inc. v. FAA, 988 F.2d 186, 190 (D.C. Cir. 1993) (if the court can
reasonably discern the agency’s path, it will uphold the agency’s decision).
The March 27, 2020, decision certainly meets this standard. The First
Circuit affirmed that Interior’s acquisition of the Mashpee and Taunton parcels was
unlawful. Littlefield, 951 F.3d at 33 (“We hold that the plain meaning of the IRA’s
text precludes the BIA’s interpretation of that section, and so we affirm.”). In
issuing the March 27, 2020, decision, Interior acted in accordance with the
conclusion reached by the First Circuit and the Massachusetts district court. Ex. 1.
Statutory authority no longer exists to support Interior’s acceptance of these parcels
into trust. Thus, the Tribe cannot show that Interior violated the APA by acting to
rescind the 2015 decision in keeping with the First Circuit’s conclusions and
mandate.
Instead, the Tribe concentrates on its challenge to Interior’s 2018 decision
regarding whether the Tribe was under Federal jurisdiction in 1934. Tribe’s Mot. at
11-12. But the Tribe is unlikely to succeed on the merits of this claim (and even if it
did, it could not result in the relief requested in the preliminary injunction motion).
As Interior explained in its summary judgment motion and reply brief which are
incorporated here by reference, the Tribe failed to demonstrate that the United
States took any actions that reflected Federal obligations, duties, responsibilities for
or authority over the Tribe prior to 1934. There were no “significant contacts
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between the United States and the Tribe through treaty, legislation, or Federal
administrative action” and “practically no evidence of any dealings” between the
Tribe and the Federal government. AR 5107; AR 5105 (Interior’s 2018 decision at
18, 20).
Despite the Tribe’s argument, Interior did not disregard the evidence
provided by the Tribe; rather, the agency considered such evidence and explained
why it did not demonstrate that the Tribe was “under Federal jurisdiction.” Fed.
Defs.’ Mem. of P & A. in Supp. of Cross-Mot. for Summ. J. (Fed. Defs.’ Mot.) at 18-
32, ECF No. 31-1 (detailing Interior’s consideration of all of the census rolls,
historical policy reports, school records, deeds, and land records that the Tribe relies
upon); AR 5106-5115 (Interior’s 2018 decision at 19-28). In doing so, Interior met
the requirements of the APA. See Confederated Tribes of the Grand Ronde Cmty. of
Or., 75 F. Supp. 3d at 408, aff’d, 830 F.3d 552 (Interior “did all that the APA
requires” when it considered the evidence regarding whether an Indian tribe was
“under Federal jurisdiction” in 1934 and “briefly explained” the weight accorded to
the evidence).
While the Tribe contends that Interior departed from its precedent, Interior
analyzed the agency decisions cited by the Tribe, as well as the case law, and
explained the critical distinctions between the Tribe’s submissions and the evidence
used to establish that other tribes were “under Federal jurisdiction” in or prior to
1934. See Fed. Defs.’ Mot. at 28-32. As Interior explained, all of the agency’s other
decisions concluding that Indian tribes were “under Federal jurisdiction” involved
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evidence whose cumulative weight was far more than presented by the Tribe. Fed.
Defs.’ Reply in Supp. of Cross-Mot. for Summ. J. at 24-25, ECF No. 37. Hence, the
Tribe is also unlikely to succeed on the merits of its cause of action in the complaint.
III. The Tribe has not shown irreparable injury
The Tribe has not shown any harm as a result of Interior’s March 27, 2020,
decision, much less irreparable harm that would justify this Court to use its
equitable authority to grant preliminary relief. Absent a showing of irreparable
harm, no injunction may issue. Cal. Ass’n of Private Postsecondary Sch. v. DeVos,
344 F. Supp. 3d 158, 165 (D.D.C. 2018)
To obtain the requested injunction, the Tribe must demonstrate that
irreparable harm is likely, not just a “possibility.” Winter, 555 U.S. at 22. The D.C.
Circuit “has set a high standard for irreparable injury.” Chaplaincy of Full Gospel
Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006). The Tribe must provide
actual evidence, not simply conclusory statements or unsupported allegations.
“‘Bare allegations of what is likely to occur are of no value;’ the movant must,
instead, ‘substantiate the claim that irreparable injury is likely to occur.’” Cal. Ass’n
of Private Postsecondary Schools, 344 F. Supp. 3d at 171 (quoting Wisc. Gas Co. v.
FERC, 758 F.2d 669, 674 (D.C. Cir. 1985)).
The Tribe’s irreparable harm argument is based on a flawed premise: the
Tribe believes that it cannot receive any Federal funding without the Mashpee and
Taunton parcels being kept in trust and reservation status. Tribe’s Mot. at 13-15.
This is incorrect. For example, the financial assistance and social service programs,
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listed by the Tribe, can be provided in geographic areas designated by the Assistant
Secretary-Indian Affairs. See 25 C.F.R. §§ 20.100 (definition of service area); 20.101
(adult care, burial, child, disaster, emergency, and general assistance, as well as
services to children, elderly and families, and the tribal work experience program
are provided within Native American tribes’ service areas). Thus, the Tribe’s
assertion that if the parcels are removed from trust and reservation status, it will
no longer be eligible for these funds is without merit.4 See, e.g., 25 C.F.R. § 20.100
(“The Assistant Secretary has designated the entire State of Alaska as a service
area.”).
The Tribe is still able to participate in federal programs as a federally
recognized tribe appearing on the list of Indian Entities Recognized by and Eligible
to Receive Services From the United States Bureau of Indian Affairs. See 85 Fed.
Reg. 5462, 5464 (Jan. 20, 2020). This includes accessing relief funds made available
to tribal governments under Title V of the Coronavirus Aid, Relief, and Economic
Security Act (CARES). See Pub. L. No. 116-136 (Mar. 27, 2020).
Some BIA programs may be affected by a change in the parcels’ trust status.
For example, BIA forestry management programs generally only apply to forested
trust lands (although certain services are available for tribal fee lands). Regardless,
the Tribe’s reliance on funding or services based on the parcels remaining in trust
indefinitely was unjustified given the Littlefield litigation. Interior’s decision to
4 If necessary, the Tribe can seek to designate or modify its service area under the process set forth within 25 C.F.R. § 20.201.
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accept conveyance of fee land into trust under the IRA was subject to challenge
within the APA’s six-year statute of limitations. See Match-E-Be-Nash-She-Wish
Band of Pottawatomi Indians v. Patchak, 567 U.S. 209 (2012). Interior’s 2015
decision was challenged within just a few months of its issuance. Littlefield,
Compl., ECF No. 1 (filed Feb. 4, 2016). The Tribe has been acutely aware of the
tenuous trust status of the parcels since at least July 28, 2016, when the Littlefield
district court deemed Interior’s 2015 decision unlawful. Littlefield, 199 F. Supp. 3d
391.
Further, the Tribe has not met their burden to prove that any immediate
injury is irreparable. Instead, the Tribe focuses on speculative financial harm and
harm to a third party. Tribe’s Mot. at 13 (alleging that if the Tribe is required to
pay back taxes, the lands could be subject to foreclosure); id. (alleging that the
Tribe’s ability to repay its debts and obtain financing would be affected); id. at 13-14
(alleging that the “confusion and uncertainty could harm a third party that had
acquired the land through tax foreclosure”). Even if these speculative injuries were
to occur, they do not qualify as injury “beyond remediation.” Cal. Ass’n of Private
Postsecondary Schools, 344 F. Supp. 3d at 170-71 (“The standard . . . requires more
than conclusory assertions of potential loss.”). As the D.C. Circuit has long
counseled, “[e]conomic loss does not, in and of itself, constitute irreparable harm.”
Wisc. Gas Co., 758 F.2d at 674.
The Tribe also complains about injuries that may occur due to its loss of
jurisdictional authority over the parcels. Tribe’s Mot. at 15-16 (alleging that
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21
jurisdictional questions will arise); id. (alleging that the Tribe will be harmed if it
has to comply with local zoning requirements and pay property taxes). But
Interior’s March 27, 2020, decision is not the cause of these alleged harms. Instead,
they flow from the First Circuit and District of Massachusetts’s rulings in
Littlefield, which concluded that Interior did not have authority to take the Tribe’s
parcels into trust. Because of these rulings, state and local authorities are entitled
to exercise jurisdictional authority over this property. The Tribe cannot turn its
disagreement with the findings in Littlefield into claims of irreparable injury before
this Court. Because the Tribe has not its burden to show irreparable injury, its
motion for injunctive relief should be denied.
IV. Neither the balance of the harms nor the public interest favor an injunction
The Tribe’s request for a preliminary injunction should also be denied
because the equities and the public interest favor Interior. Because any harm posed
to the Tribe is speculative or reparable, this counsels against entering the requested
injunction. Where the federal government is a party, the third and fourth
injunction factors—the balance of equities and the public interest—“merge.” Nken
v. Holder, 556 U.S. 418, 420, 435 (2009). Courts must “balance the competing
claims of injury and must consider the effect on each party of the granting or
withholding of the requested relief[,] and] [i]n exercising their sound discretion,
courts of equity should pay particular regard for the public consequences.” Winter,
555 U.S. at 24 (citations omitted).
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The First Circuit and District of Massachusetts both concluded that Interior
incorrectly construed the IRA’s second definition of “Indian,” and as a result,
Interior’s acquisition of the parcels was unlawful. Littlefield, 951 F.3d at 36-41;
Littlefield, 199 F. Supp. 3d at 396-400. The Tribe contends that the First Circuit
did not order Interior to transfer the parcels out of trust. Tribe’s Mot. at 18-19. But
the public interest is served by Interior’s recognition of the Littlefield rulings and
the agency’s decision to act in keeping with the findings made by the appellate and
district courts. Fund for Animals v. Espy, 814 F. Supp. 142, 152 (D.D.C.) (“There is
a strong public interest in meticulous compliance with the law by public officials.”).
Indeed, the First Circuit found the land transfer to be unlawful and the Tribe
cannot now contend that the balance of equities fall in its favor by way of Interior
reversing the land transfer as it is wholly consistent with the First Circuit’s final
mandate.
Relying on the Maytubby Affidavit, which was submitted during the
Littlefield district court proceedings, the Tribe argues that it is not in Interior’s
interest to take the parcels out of trust. Tribe’s Mot. at 17. The significance that
the Tribe places on this statement is misplaced. The “perplexing situation in which
the ROD is still in effect and yet the parcels are still in trust,” which the Maytubby
Affidavit discussed—is no longer an issue. Tribe’s Mot., Ex. 1, Aff. of Bruce W.
Maytubby ¶ 7. Here, consistent with the First Circuit’s holding on the law, Interior
has directed BIA to rescind the 2015 decision and transfer the parcels out of trust.
Ex. 1. Similarly, the Maytubby Affidavit was concerned with the effect of reversing
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the trust transfer prior to the issuance of a final decision on the merits. Aff. of
Bruce W. Maytubby ¶ 6. Now, such as a decision has been issued by the appellate
court in Littlefield, so the concerns described in the Maytubby Affidavit are no
longer relevant.
In addition, in the 2018 decision, Interior conducted a thorough analysis and
concluded that the Tribe did not meet the IRA’s first definition of “Indian,” nor the
Act’s second definition as defined in Littlefield. See supra pp. 19-21. There are no
outstanding determinations that Interior needs to make regarding its statutory
authority to acquire the parcels in trust, and the public interest is served by
recognizing the agency’s extensive and probing analysis of these issues which
included consideration of the Tribe’s views.
Although the Tribe criticizes Interior’s March 27, 2020, decision, this too fails
to establish that the equities weigh in the Tribe’s favor. Tribe’s Mot. at 18-21. As
discussed above, the Tribe has no claims before this Court challenging the
March 27, 2020, decision. In any event, the Tribe has not shown that Interior’s
decision was arbitrary and capricious. See supra pp. 18-19. The Tribe suggests that
Interior is acting inconsistently with its past policy and practices. Tribe’s Mot. at
20. But Interior has taken land out of trust in other cases. See, e.g., Land Status:
Lower Brule Sioux Tribe, 62 Fed. Reg. 26,551 (May 14, 1997).5 And the agency
recognizes that fee-to-trust transfers must be vacated, if such acquisitions are found
5 Interior routinely transfers land from trust to fee status as part of the probate process. See 25 U.S.C. § 2206(b)(2)(B).
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to be in error. See Stand Up for Cal. v. U.S. Dep’t of the Interior, 919 F. Supp. 2d
51, 83 (D.D.C. 2013) (finding that a future order vacating the trust transfer will not
be precluded and noting that Interior has assured the court that the agency will
take the land out of trust, if so ordered); see also Crawford-Hall v. United States,
394 F. Supp. 3d 1122, 1155 (C.D. Cal. 2019) (vacating Interior’s decision and
acceptance of conveyance of deed to the United States in trust for the Band).
Finally, any consideration of the public interest must also take into account
state and local interests in Massachusetts. Because statutory authority no longer
exists to support Interior’s acceptance of these parcels into trust, state and local
authorities are entitled to exercise regulatory and other jurisdictional authority
over this land. Interior’s March 27, 2020, decision clarifies the status of this land
and dispels jurisdictional confusion that may exist after the issuance of the First
Circuit’s mandate. The public interest is served by providing clarity to state and
local governments regarding the status of these parcels. Thus, the equities do not
lie in the Tribe’s favor and its motion should be denied.
Conclusion
The Court lacks jurisdiction to consider the Tribe’s motion. If the Tribe
wants relief from the First Circuit’s judgment and mandate, the Tribe needs to seek
relief in that court. Because the Tribe’s motion seeks a different remedy than the
one in the Tribe’s complaint, addresses causes of action that are outside of its
complaint, and raises new issues that are not before the Court, this Court cannot
enter a preliminary injunction halting Interior’s March 27, 2020, decision. The
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Tribe has also failed to meet its burden of proof on each of the requirements for this
Court to consider the extraordinary remedy of a preliminary injunction. Based on
the aforementioned, Federal Defendants respectfully request that the Tribe’s
motion be denied.
Respectfully submitted this 21st day of April, 2020.
For Federal Defendants: PRERAK SHAH Deputy Assistant Attorney General /s Sara E. Costello SARA E. COSTELLO Trial Attorney United States Department of Justice Environment & Natural Resources Division Natural Resources Section P.O. Box 7611 Washington, DC 20044-7611 Tel: 202-305-0484 Fax: 202-305-0506 Email: sara.costello2@usdoj.gov OF COUNSEL Robert Hitchcock Attorney-Advisor Branch of Environment & Lands Office of the Solicitor Division of Indian Affairs U.S. Department of the Interior
Case 1:18-cv-02242-PLF Document 50 Filed 04/21/20 Page 30 of 31
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on April 21, 2020, a copy of the foregoing was filed
through the Court’s CM/ECF management system and electronically served on
counsel of record.
/s Sara E. Costello Sara E. Costello Trial Attorney
Case 1:18-cv-02242-PLF Document 50 Filed 04/21/20 Page 31 of 31
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